Sealing the Deal: Contracts – A Smart Investment (Part 1)

May 12th, 2009

A legal contract is an important tool for businesses both large and small.  Unfortunately, we live in a very litigious society and the days of the simple handshake to finalize a deal are, for the most part, over.  Scrimping to save on costs at the beginning of a project may cost your company tens of thousands of dollars in the long run.  Be careful of boiler plate contract forms.  While they may spell out certain legal rights, they may also fail to include other vital provisions that will negate future disputes.  Every contract should be read thoroughly and should you find a provision to be unclear, ask questions.  If the terms of a contract are vague or excessively one-sided, you may end up unnecessarily in court.  Both parties should gain value from the contract.  Clear contracts make for happy profitable business relationships.

A contract should clearly define the terms of the parties and spell out exactly what the project entails.  It formalizes the agreement, clarifies communications, and provides a predetermined recourse for when things go wrong.  It may include payment terms or conditions, protection of trade secrets, restrictive geographic scopes, timelines, warranties, exclusions, cancellation clauses, penalty clauses, etc.  A good contract keeps energies focused on the underlying project and allows the parties to get things done more efficiently.  Therefore, a contract must not only be clear, it must also be concise.

A contract becomes increasingly important in times of dispute.  A lack of clarity in a contract can lead to costly litigation.  Remember, in a court of law, a written contract trumps an oral contract.  To coin a phrase, “the written pen is mightier than the tongue.”  In other words, in instances where written and oral portions of a contract contradict each other, the written portion prevails.  Disputes can be minimized if the hard-line terms are negotiated and spelled out at the beginning of the relationship when the contract is being formed. 

Some essentials to consider when creating a contract are as follows: 

  • Parties to the agreement should be spelled out
  • There should be some consideration offered for the agreement
  • Parties should be competent to contract.  All persons are legally authorized to contract except the following:
    • Minors, who are under 18 years of age.
    • Mentally incompetent persons
    • Persons ineligible from entering into contract by law
  • Free consent to the agreement
  • Object of agreement should be lawful
  • Detailed description of the duties and obligations of the parties
  • Representations concerning warranties
  • Confidentiality clauses
  • The force majeure clause which generally provides that no party will be liable for non-performance arising out of an event of force majeure e.g. war, terrorist act, epidemic
  • The terms of the agreement between the parties should be specific
  • Events on occurrence of which the contract will be terminated should be specific
  • A method of giving notice for breach and providing the breaching party a time to cure (generally a party who has suffered due to a breach of contract can claim damages that will put the non-breaching party in the position they would have been in if the contract had been performed)
  • Relief available to one party on the breach of the other party
  • Arbitration or mediation clause
  • Termination or duration of contract

There are many forms of contracts, to be discussed in Part II of Sealing the Deal: Contracts – A Smart Investment.

Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333

Bitter Truths are Painful but Help Children Recover

May 4th, 2009

The transition process for a child in a divorce is a difficult one which can result in acceptance, growth and renewal or long term resentments and unrealistic expectations.

It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.

If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand.  The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child.  At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore.  This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result.  Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation.  I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing.  They can express their feelings directly to their friends and peers.  They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.

Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.”  In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children.  In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc.  They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.”  They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes. 

It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children.  If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk.  If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore.  Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model.  Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all.  Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives. 

Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic.  Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow.  The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.

The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.