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An agreement states:
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The undersigned, called 'First Party,' makes application to [AAAA]
called 'Second Party,' for execution by [CCCC] a corporation called
'Surety: of a Bail Undertaking herein referred to as 'Bail Bond'' in the
penal amount of [$$$$] for [PPPP] called "principal"; and consideration
of Second Party arranging for execution of or continuance of this Bail
Bond, First Party does jointly and severally agree as follows:
FIRST: To pay Second Party $1000 per annum for this Bail Bond.
..
..
..
..
Undersigned = PPPP and co-signer = First Party.
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There are four requirements that constitute the elements of a contract:
(1) agreement, (2) consideration, (3) capacity and (4) legality.
Therefore, if any element is missing there is no legal contract.
In my question, I am focusing on the element (1) the 'agreement' that
the First Party pays jointly and severally Second Party $1000.
If the First Party pays jointly, than the [PPPP] pays $x amount and
co-signer pays $y amount as one joint payment, payable to the Second Party.
If the First Party pays severally, than the [PPPP] pays $x amount and
co-signer pays $y amount as separate payments, payable to the Second
Party.
From the above it is clear that legal element (1) exists only if [PPPP]
and co-signer both pay.
However, if only the co-signer pays $1000 to Second Party and Second
Party will accept such payment as a payment from the First Party, (thus
breaching the contract) than the [PPPP] is not a party to the contract
because of missing legally required contractual element (1).
Is my logic correct?
-Stan
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Yes. Basically the payment term, jointly & severally means that either of
them are liable for the entire amount. So, if one party pays the entire
amount, their recourse is to go after the second party and vice versa.
An agreement states:
------------------------------------------
The undersigned, called 'First Party,' makes application to [AAAA]
called 'Second Party,' for execution by [CCCC] a corporation called
'Surety: of a Bail Undertaking herein referred to as 'Bail Bond'' in the
penal amount of [$$$$] for [PPPP] called "principal"; and consideration
of Second Party arranging for execution of or continuance of this Bail
Bond, First Party does jointly and severally agree as follows:
FIRST: To pay Second Party $1000 per annum for this Bail Bond.
.
.
.
.
Undersigned = PPPP and co-signer = First Party.
------------------------------------------
There are four requirements that constitute the elements of a contract:
(1) agreement, (2) consideration, (3) capacity and (4) legality.
Therefore, if any element is missing there is no legal contract.
In my question, I am focusing on the element (1) the 'agreement' that
the First Party pays jointly and severally Second Party $1000.
If the First Party pays jointly, than the [PPPP] pays $x amount and
co-signer pays $y amount as one joint payment, payable to the Second
Party.
If the First Party pays severally, than the [PPPP] pays $x amount and
co-signer pays $y amount as separate payments, payable to the Second
Party.
From the above it is clear that legal element (1) exists only if [PPPP]
and co-signer both pay.
However, if only the co-signer pays $1000 to Second Party and Second
Party will accept such payment as a payment from the First Party, (thus
breaching the contract) than the [PPPP] is not a party to the contract
because of missing legally required contractual element (1).
Is my logic correct?
-Stan
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Jade wrote:
Yes. Basically the payment term, jointly & severally means that either of
them are liable for the entire amount. So, if one party pays the entire
amount, their recourse is to go after the second party and vice versa.
However, I am going little bit further. I am saying that if one party
pays unilaterally entire amount and the second party pays nothing than
the second party, by a default, cannot perform under the contract
because the legally required contractual element 'agreement' is not
present in second party's contract. So when an Agent accepts the payment
in full from the first party he released the second party from the
contract and cannot go after second party for nonperformance of the
first party.
It is clearly apparent that in order to maintain contract liability
among both parties an Agent must allow for both parties to maintain all
four (4) legally required contractual elements among all parties at all
times because term jointly & severally does not mean unilaterally.
So if a payment is submitted to an agent it must be clear that all
undersigned parties are participating in such payment.
There is an ambiguity in a contract which allows jointly & severally
liable parties to perform unilaterally.
Am I correct in my logic?
-Stan
Party.
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It sounds like you touching on the notion of "discharge" or "discharge by
performance." A party may discharge the contract by fully performing.
An agreement states:
------------------------------------------
The undersigned, called 'First Party,' makes application to [AAAA] called
'Second Party,' for execution by [CCCC] a corporation called 'Surety: of a
Bail Undertaking herein referred to as 'Bail Bond'' in the penal amount of
[$$$$] for [PPPP] called "principal"; and consideration of Second Party
arranging for execution of or continuance of this Bail Bond, First Party
does jointly and severally agree as follows:
FIRST: To pay Second Party $1000 per annum for this Bail Bond.
.
.
.
.
Undersigned = PPPP and co-signer = First Party.
------------------------------------------
There are four requirements that constitute the elements of a contract:
(1) agreement, (2) consideration, (3) capacity and (4) legality.
Therefore, if any element is missing there is no legal contract.
In my question, I am focusing on the element (1) the 'agreement' that the
First Party pays jointly and severally Second Party $1000.
If the First Party pays jointly, than the [PPPP] pays $x amount and
co-signer pays $y amount as one joint payment, payable to the Second
Party.
If the First Party pays severally, than the [PPPP] pays $x amount and
co-signer pays $y amount as separate payments, payable to the Second
Party.
From the above it is clear that legal element (1) exists only if [PPPP]
and co-signer both pay.
However, if only the co-signer pays $1000 to Second Party and Second Party
will accept such payment as a payment from the First Party, (thus
breaching the contract) than the [PPPP] is not a party to the contract
because of missing legally required contractual element (1).
Is my logic correct?
-Stan
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I approved this message wrote:
It sounds like you touching on the notion of "discharge" or "discharge by
performance." A party may discharge the contract by fully performing.
FAQ: What is "fully performing?"
Contract simply states:
"FIRST: To pay Second Party $1000 per annum for this Bail Bond."
Bail Bond was exonerated within 5 month of the contract.
If the first party is obligated under the contract to pay $1000 to the
second party and based on that obligation timely submits the cashier's
check to the second party which is not denying existence of this
payment...... is such contract dischargeable based on full performance
regardless of what happens to that cashiers check?
At which point the payment was legally made?
Lets assume that the check was returned without any explanation to the
first party and was never claimed back by second party, nor did the
second party acknowledged any error, instead the second party elected to
use collateral (lien) to force a payment.
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