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Hi, from what I gathered from research on the internet, for a
legalling binding contract to exist, a promise must be exchanged for
adequate consideration. In the following scenario, does a contract
exist?
Say, my property was damaged due to a friend's negligence. Before I
even considered suing him, as a token of regret and because he was
cash-strapped and therefore unable to compensate in cash, he allowed
me unlimited use of his car for a period of 6 months, as a form of
compensation. This was conveyed via an email from him to me and
although I accepted the offer, I did not reply in writing, only did so
orally. I then proceeded to use his car. It's also not clearly said in
the email what the offer is for - ie, that it's to compensate for the
loss I incurred as a result of his negligence.
My question is, is there a legally binding contract between the 2 of
us? Can he sometime in future choose to refuse me the use of his car
before the 6 months is up? Can he unilaterally alter the conditions of
the contract, if there is one to begin with?
Looking forward to your advice again. Thanks.
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For a contract to exist you need an offer, an acceptance, and consideration
as you said.
Though your agreement (or much of it) was not written, his email statement
offering you a specified amount of time in the car was a true offer and
since you've already begun to take advantage of this offer it shows that you
accepted it. The consideration for him was that he gave you the use of his
car, your consideration was that you did not demand payment for his
'negligence' in some other form.
So yes you seem to have all the elements of a valid contract. He probably
cannot change the terms of the agreement, and you probably cannot either
(without risking court, of course). One of you can always renegotiate the
contract, however, if the other will consent. Then you have a new
contract.
I would bet that most courts would construe that as a binding contract, even
though it's not written, as oral contracts are binding as well, and the fact
that you have been using his car is clear evidence of it.
If one of you breaches the contract, the court will probably liquidate the
damages. If he breaches, he will probably have to pay the rest of what he
owes you (minus the contract-based value of the time you've spent using his
car) in cash. I'm not even sure you'd need to prove negligence on his part
in the original problem, if you can show he intended to enter into a
contract with you regarding a specified amount of damages he may have
caused. If you breach by suing him for his 'negligence' the court will
probably only award you a percentage of what you would have originally
gotten (again valuing the car-usage and subtracting it from what he owes
you) and then you may have to prove negligence.
--
Falky
San Diego, Calif.
----------------
Disclaimer: This has been the opinion of a law student, not a lawyer.
Author advises each reader to get the opinion of a legal professional.
This post is not intended to be legal advice.
Hi, from what I gathered from research on the internet, for a
legalling binding contract to exist, a promise must be exchanged for
adequate consideration. In the following scenario, does a contract
exist?
Say, my property was damaged due to a friend's negligence. Before I
even considered suing him, as a token of regret and because he was
cash-strapped and therefore unable to compensate in cash, he allowed
me unlimited use of his car for a period of 6 months, as a form of
compensation. This was conveyed via an email from him to me and
although I accepted the offer, I did not reply in writing, only did so
orally. I then proceeded to use his car. It's also not clearly said in
the email what the offer is for - ie, that it's to compensate for the
loss I incurred as a result of his negligence.
My question is, is there a legally binding contract between the 2 of
us? Can he sometime in future choose to refuse me the use of his car
before the 6 months is up? Can he unilaterally alter the conditions of
the contract, if there is one to begin with?
Looking forward to your advice again. Thanks.
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n 20 Sep 2004, splitman2000@hotmail.com (splitman2000) hypothesized
in substance:
I gather that for there to be a legally binding contract,
a promise must be exchanged for adequate consideration.
In the following scenario, does a contract exist? -
Assume that in compromise/settlement of a dispute whether
F negligently damaged my property while also accomodating
F's claim of limited cash-flow, F orally and by email offered
to compensate me in the form of making his car available to
me for my unlmited use for six months and that I accept that
offer orally whereupon I proceed to use his car.
Yes, if it is correct to assume that, by reason of whatever is the
relevant combination of where the parties reside or where they agreed
the settlement is to be performed (factors you do not make clear in
your hypothetical scenario), the agreement is not governed by the law
of a jurisdiction with a statute-of-frauds requirement that a contract
which by its terms cannot be performed by the obligor in less than six
months or which is in compromise/settlement of an otherwise suable
property damage claim will not be enforceable unless memorialized by a
signed writing other than email of the sort to which you refer.
Would the analysis be different if F's email did not
say clearly that the offer of the car's use was for,
i.e, that my accepting it and F's then complying with
what he offered would be deemed compensation in
full for what I had earlier claimed was F's negligently
caused damage to my property?
A core element of the summary formulation with which you begin your
posting, that there must be a an offer of a "promise" to do something,
implicitly presumes that what is "promised" is not so vague as to omit
a material term, yet you also do not actually say that oral portion of
what you characterize as an "offer" itself specified that it was being
made as one of compromise/settlement such that your acceptance (if F
as offeror thereafter performed in accord with what F offered by
making his car unlimitedly available for your use on whatever you both
reasonably then also understood to be the first day of the six-months
to which you refer) would constitute your agreement to accept your
unlimited use of the vehicle for that period as if payment in full of
your above summarized claim or that, to whatever if any extent the
offere did not make all the foregoing clear, in you saying (whether or
not orally or in writing) that you accepted the offer, you
communicated your undertaking to acceptwhat was offered in full
satisfaction of that claim. However, you appear to imply in your
other facts above that, when considered in light of what F had earlier
offered orally, the email can be fairly said to refer to his offering
you six months of the car's unlimited use in satisfaction of your
said claim.
The "Yes" above therefore is further qualified by the assumption that,
if there were an unresolved dispute about these issues, an impartial
arbiter would decide, based on the preponderently credible evidence,
that no material term of a compromise/settlement of the property
damage claim was omitted (bearing further in mind that "compromise and
settlement" is also a term of art -- a legal conclusion functionally
comparable to the affirmative defense of "payment" -- to summarize a
principle invokable to require the dismissal of a later lawsuit by you
by which you sought to recover damages by reason of the alleged
negligently caused damage to which you first refer).
If before the 6 months of promised unlimited
use he in some material way alters the conditions
of my use, what are my options?
Continuing to make the assumptions summarized above, this is just
another way to ask whether, as a practical matter, it would make sense
for you to sue rather than to agree or for F to agree to a further
compromise, depending on the degree to which you and F estimate that
what you claim to be a breach actually is material.
In just abstract analytical terms, whether the unilaterally altered
conditions are in fact sufficiently sustantial to justify concluding
that F repudiated the compromise/settlement in a manner that alows you
to sue on the original property damage claim (if it is not by then
time-barred) or concluding that there is a compromise/settlement that
supercedes and has the effect of terminating your right to sue on the
underlying claim but the violation of which entitles you to an award
of damages for its breach are at least theoretically arguable issues
when, as here, the underlying facts are hypothesized in somewhat
conclusory form.
In real-life practical terms, however, in connection with an incohate
property damage claim so nominal that your own formulation at least
makes clear that you consider unlimited use of a vehicle for
six-months to be fair compensation, i.e., in the context of a
compromise/settlement as essentially trivial as the agreement you
appear to hypothesize, a fair-minded and reasonable judge (perhaps a
wizened and gruff and cynical "small claims" court judge?) very
probably would (and certainly should) take a cold-bloodedly
dispassionate approach to bickering between you and F after you had
used the vehicle for some time, if that occurred, to dispose finally
of a lawsuit.
Of course, if you prefer, you can also sue one another about what, as
between the two of you, "unlimited use" means (that F shall supply at
F's expense all fuel and maintenance services that may become required
during the six month period? whether "unlimited" means that you may
attach a trailer hitch and go into the cross-country heavy-equipment
moving/hauling business with F's car during this period? that even if
you and F reside in a basically urban or suburban area, e.g.,
in/around the Chicago area, you may use the car ["unlimitedly"?] for
off-roads mountain exploring on U.S. forest service dirt roads in
Idaho or in the Northwest? that if you choose to use the vehicle to
transport narcotics for intended sale by you and are caught in a
lawful arrest and the vehicle confiscated, you will not be liable to F
for the loss to F of the vehicle?).
Apart from the narrow factual scenario you posit, your query merely
provides another special case illustration of the more general notion
that, especially if they are suffiently self-motivated and perverse,
contracting parties can litigate about claimed ambiguities even in
(actually, in real life, perhaps especially in connection with) a
multi-hundred page definition-ridden contract drafted by teams of
"white shoe" lawyers (although, in such cases, it is likely that each
of the parties will have earlier agreed to incorporate remedial
provisions, such as for award of attorneys fees, etc., to deter this
possiblity).
Asking whether an agreement is that and is a "contract" that is
"binding" in case of a real-life unresolved dispute (though most such
diputes are and should be resolved by the parties themselves) is just
to ask for a prediction --i.e., a guess -- how a court would decide,
if there were a lawsuit decided law-correctly by a court (or, if there
were appeals, after the judgment become final); although a
professional (e.g., a knowledgeable/experienced attorney), acting as
such, would be willing to use the term "professional judgment" rather
than "guess" if s/he had first fully examin
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n 20 Sep 2004, splitman2000@hotmail.com (splitman2000) hypothesized
in substance:
I gather that for there to be a legally binding contract,
a promise must be exchanged for adequate consideration.
In the following scenario, does a contract exist? -
Assume that in compromise/settlement of a dispute whether
F negligently damaged my property while also accomodating
F's claim of limited cash-flow, F orally and by email offered
to compensate me in the form of making his car available to
me for my unlmited use for six months and that I accept that
offer orally whereupon I proceed to use his car.
Yes, if it is correct to assume that, by reason of whatever is the
relevant combination of where the parties reside or where they agreed
the settlement is to be performed (factors you do not make clear in
your hypothetical scenario), the agreement is not governed by the law
of a jurisdiction with a statute-of-frauds requirement that a contract
which by its terms cannot be performed by the obligor in less than six
months or which is in compromise/settlement of an otherwise suable
property damage claim will not be enforceable unless memorialized by a
signed writing other than email of the sort to which you refer.
Would the analysis be different if F's email did not
say clearly that the offer of the car's use was for,
i.e, that my accepting it and F's then complying with
what he offered would be deemed compensation in
full for what I had earlier claimed was F's negligently
caused damage to my property?
A core element of the summary formulation with which you begin your
posting, that there must be a an offer of a "promise" to do something,
implicitly presumes that what is "promised" is not so vague as to omit
a material term, yet you also do not actually say that oral portion of
what you characterize as an "offer" itself specified that it was being
made as one of compromise/settlement such that your acceptance (if F
as offeror thereafter performed in accord with what F offered by
making his car unlimitedly available for your use on whatever you both
reasonably then also understood to be the first day of the six-months
to which you refer) would constitute your agreement to accept your
unlimited use of the vehicle for that period as if payment in full of
your above summarized claim or that, to whatever if any extent the
offere did not make all the foregoing clear, in you saying (whether or
not orally or in writing) that you accepted the offer, you
communicated your undertaking to acceptwhat was offered in full
satisfaction of that claim. However, you appear to imply in your
other facts above that, when considered in light of what F had earlier
offered orally, the email can be fairly said to refer to his offering
you six months of the car's unlimited use in satisfaction of your
said claim.
The "Yes" above therefore is further qualified by the assumption that,
if there were an unresolved dispute about these issues, an impartial
arbiter would decide, based on the preponderently credible evidence,
that no material term of a compromise/settlement of the property
damage claim was omitted (bearing further in mind that "compromise and
settlement" is also a term of art -- a legal conclusion functionally
comparable to the affirmative defense of "payment" -- to summarize a
principle invokable to require the dismissal of a later lawsuit by you
by which you sought to recover damages by reason of the alleged
negligently caused damage to which you first refer).
If before the 6 months of promised unlimited
use he in some material way alters the conditions
of my use, what are my options?
Continuing to make the assumptions summarized above, this is just
another way to ask whether, as a practical matter, it would make sense
for you to sue rather than to agree or for F to agree to a further
compromise, depending on the degree to which you and F estimate that
what you claim to be a breach actually is material.
In just abstract analytical terms, whether the unilaterally altered
conditions are in fact sufficiently sustantial to justify concluding
that F repudiated the compromise/settlement in a manner that alows you
to sue on the original property damage claim (if it is not by then
time-barred) or concluding that there is a compromise/settlement that
supercedes and has the effect of terminating your right to sue on the
underlying claim but the violation of which entitles you to an award
of damages for its breach are at least theoretically arguable issues
when, as here, the underlying facts are hypothesized in somewhat
conclusory form.
In real-life practical terms, however, in connection with an incohate
property damage claim so nominal that your own formulation at least
makes clear that you consider unlimited use of a vehicle for
six-months to be fair compensation, i.e., in the context of a
compromise/settlement as essentially trivial as the agreement you
appear to hypothesize, a fair-minded and reasonable judge (perhaps a
wizened and gruff and cynical "small claims" court judge?) very
probably would (and certainly should) take a cold-bloodedly
dispassionate approach to bickering between you and F after you had
used the vehicle for some time, if that occurred, to dispose finally
of a lawsuit.
Of course, if you prefer, you can also sue one another about what, as
between the two of you, "unlimited use" means (that F shall supply at
F's expense all fuel and maintenance services that may become required
during the six month period? whether "unlimited" means that you may
attach a trailer hitch and go into the cross-country heavy-equipment
moving/hauling business with F's car during this period? that even if
you and F reside in a basically urban or suburban area, e.g.,
in/around the Chicago area, you may use the car ["unlimitedly"?] for
off-roads mountain exploring on U.S. forest service dirt roads in
Idaho or in the Northwest? that if you choose to use the vehicle to
transport narcotics for intended sale by you and are caught in a
lawful arrest and the vehicle confiscated, you will not be liable to F
for the loss to F of the vehicle?).
Apart from the narrow factual scenario you posit, your query merely
provides another special case illustration of the more general notion
that, especially if they are suffiently self-motivated and perverse,
contracting parties can litigate about claimed ambiguities even in
(actually, in real life, perhaps especially in connection with) a
multi-hundred page definition-ridden contract drafted by teams of
"white shoe" lawyers (although, in such cases, it is likely that each
of the parties will have earlier agreed to incorporate remedial
provisions, such as for award of attorneys fees, etc., to deter this
possiblity).
Asking whether an agreement is that and is a "contract" that is
"binding" in case of a real-life unresolved dispute (though most such
diputes are and should be resolved by the parties themselves) is just
to ask for a prediction --i.e., a guess -- how a court would decide,
if there were a lawsuit decided law-correctly by a court (or, if there
were appeals, after the judgment become final); although a
professional (e.g., a knowledgeable/experienced attorney), acting as
such, would be willing to use the term "professional judgment" rather
than "guess" if s/he had first fully examin
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Um, was that in English?
Yes, if it is correct to assume that, by reason of whatever is the
relevant combination of where the parties reside or where they agreed
the settlement is to be performed (factors you do not make clear in
your hypothetical scenario), the agreement is not governed by the law
of a jurisdiction with a statute-of-frauds requirement that a contract
which by its terms cannot be performed by the obligor in less than six
months or which is in compromise/settlement of an otherwise suable
property damage claim will not be enforceable unless memorialized by a
signed writing other than email of the sort to which you refer.
A core element of the summary formulation with which you begin your
posting, that there must be a an offer of a "promise" to do something,
implicitly presumes that what is "promised" is not so vague as to omit
a material term, yet you also do not actually say that oral portion of
what you characterize as an "offer" itself specified that it was being
made as one of compromise/settlement such that your acceptance (if F
as offeror thereafter performed in accord with what F offered by
making his car unlimitedly available for your use on whatever you both
reasonably then also understood to be the first day of the six-months
to which you refer) would constitute your agreement to accept your
unlimited use of the vehicle for that period as if payment in full of
your above summarized claim or that, to whatever if any extent the
offere did not make all the foregoing clear, in you saying (whether or
not orally or in writing) that you accepted the offer, you
communicated your undertaking to acceptwhat was offered in full
satisfaction of that claim. However, you appear to imply in your
other facts above that, when considered in light of what F had earlier
offered orally, the email can be fairly said to refer to his offering
you six months of the car's unlimited use in satisfaction of your
said claim.
The "Yes" above therefore is further qualified by the assumption that,
if there were an unresolved dispute about these issues, an impartial
arbiter would decide, based on the preponderently credible evidence,
that no material term of a compromise/settlement of the property
damage claim was omitted (bearing further in mind that "compromise and
settlement" is also a term of art -- a legal conclusion functionally
comparable to the affirmative defense of "payment" -- to summarize a
principle invokable to require the dismissal of a later lawsuit by you
by which you sought to recover damages by reason of the alleged
negligently caused damage to which you first refer).
Continuing to make the assumptions summarized above, this is just
another way to ask whether, as a practical matter, it would make sense
for you to sue rather than to agree or for F to agree to a further
compromise, depending on the degree to which you and F estimate that
what you claim to be a breach actually is material.
In just abstract analytical terms, whether the unilaterally altered
conditions are in fact sufficiently sustantial to justify concluding
that F repudiated the compromise/settlement in a manner that alows you
to sue on the original property damage claim (if it is not by then
time-barred) or concluding that there is a compromise/settlement that
supercedes and has the effect of terminating your right to sue on the
underlying claim but the violation of which entitles you to an award
of damages for its breach are at least theoretically arguable issues
when, as here, the underlying facts are hypothesized in somewhat
conclusory form.
In real-life practical terms, however, in connection with an incohate
property damage claim so nominal that your own formulation at least
makes clear that you consider unlimited use of a vehicle for
six-months to be fair compensation, i.e., in the context of a
compromise/settlement as essentially trivial as the agreement you
appear to hypothesize, a fair-minded and reasonable judge (perhaps a
wizened and gruff and cynical "small claims" court judge?) very
probably would (and certainly should) take a cold-bloodedly
dispassionate approach to bickering between you and F after you had
used the vehicle for some time, if that occurred, to dispose finally
of a lawsuit.
Of course, if you prefer, you can also sue one another about what, as
between the two of you, "unlimited use" means (that F shall supply at
F's expense all fuel and maintenance services that may become required
during the six month period? whether "unlimited" means that you may
attach a trailer hitch and go into the cross-country heavy-equipment
moving/hauling business with F's car during this period? that even if
you and F reside in a basically urban or suburban area, e.g.,
in/around the Chicago area, you may use the car ["unlimitedly"?] for
off-roads mountain exploring on U.S. forest service dirt roads in
Idaho or in the Northwest? that if you choose to use the vehicle to
transport narcotics for intended sale by you and are caught in a
lawful arrest and the vehicle confiscated, you will not be liable to F
for the loss to F of the vehicle?).
Apart from the narrow factual scenario you posit, your query merely
provides another special case illustration of the more general notion
that, especially if they are suffiently self-motivated and perverse,
contracting parties can litigate about claimed ambiguities even in
(actually, in real life, perhaps especially in connection with) a
multi-hundred page definition-ridden contract drafted by teams of
"white shoe" lawyers (although, in such cases, it is likely that each
of the parties will have earlier agreed to incorporate remedial
provisions, such as for award of attorneys fees, etc., to deter this
possiblity).
Asking whether an agreement is that and is a "contract" that is
"binding" in case of a real-life unresolved dispute (though most such
diputes are and should be resolved by the parties themselves) is just
to ask for a prediction --i.e., a guess -- how a court would decide,
if there were a lawsuit decided law-correctly by a court (or, if there
were appeals, after the judgment become final); although a
professional (e.g., a knowledgeable/experienced attorney), acting as
such, would be willing to use the term "professional judgment" rather
than "guess" if s/he had first fully examined all the underlying
relevant realistically provable facts.
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So there is a binding contract in place that cannot be altered
unilaterally? That's good to hear. However, if he chooses to breach
the contract, the court will likely liquidate the damages? That
doesn't augur well as it will have been a while and there'll be no way
I can fairly value or estimate the loss I suffered. I didn't really do
my math as to how much the deal was worth when he offered me the use
of his car. I just thought it was timely as I had needed it and it was
a 'nice' gesture on his part. The problem is he's unpredictable and
I'm concerned one day he would just decide that he's not going through
with itl and I would have no recourse. Instead of liquidating the
damages, I would hope the court would force him to honor the contract,
if he should choose to breach it one day...
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Thank you for your input but would appreciate it if you could write in
plain English. I'm just a layperson who knows next to nothing about
law.
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The court would probably NOT force him to honor the contract (which is
called 'specific performance') because courts traditionally would rather
give money than make somebody do something.. plus the fact that it really is
his car would make the court very and I mean very hesitant to force him to
let you use it.
--
Falky
San Diego, Calif.
----------------
Disclaimer: This has been the opinion of a law student, not a lawyer.
Author advises each reader to get the opinion of a legal professional.
This post is not intended to be legal advice.
So there is a binding contract in place that cannot be altered
unilaterally? That's good to hear. However, if he chooses to breach
the contract, the court will likely liquidate the damages? That
doesn't augur well as it will have been a while and there'll be no way
I can fairly value or estimate the loss I suffered. I didn't really do
my math as to how much the deal was worth when he offered me the use
of his car. I just thought it was timely as I had needed it and it was
a 'nice' gesture on his part. The problem is he's unpredictable and
I'm concerned one day he would just decide that he's not going through
with itl and I would have no recourse. Instead of liquidating the
damages, I would hope the court would force him to honor the contract,
if he should choose to breach it one day...
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splitman2000@hotmail.com (splitman2000) wrote in message news:<bdf8cf95.0409220810.2e3799e@posting.google.com>...
Thank you for your input but would appreciate it if you could write in
plain English. I'm just a layperson who knows next to nothing about
law.
Falky gave you a good answer.
To oversimplify, it sounds like an enforceable contract. The
requirements of a contract are there: offer, acceptance, consideration
on both sides. The existence of a contract like this doesn't depend on
your acceptance being in writing, only the difficulty of proving there
was one if push came to shove.
If your friend wanted to breach the contract, you could sue and be
awarded damages. You would have to prove that there was a contract,
that he breached it, and that you were out money because of the
breach. Small Claims courts deal with disputes over informal contracts
all the time.
--
Not a lawyer,
Chris Green
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I guess at least I know that if he threatens to or so much as hints at
wanting to take back his word, I can confront him in no uncertain
terms that there is an enforceable contract that he is obligated to
honor.
Thanks.
-----------
"Falky foo" <falkyfoo@bonksbcglobal.net> wrote in message news:<Vmn4d.24314$Jx6.13433@newssvr29.news.prodigy.com>...
The court would probably NOT force him to honor the contract (which is
called 'specific performance') because courts traditionally would rather
give money than make somebody do something.. plus the fact that it really is
his car would make the court very and I mean very hesitant to force him to
let you use it.
--
Falky
San Diego, Calif.
----------------
Disclaimer: This has been the opinion of a law student, not a lawyer.
Author advises each reader to get the opinion of a legal professional.
This post is not intended to be legal advice.
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Thanks. Like I said in response to Falky's answer, I hope he would
honor the contract to the very end. While knowing that there's an
enforceable contract is reassuring, having to sue him in court should
he breach it is not an entertaining thought as in reality, I would be
hard pressed to prove the extent of the damage he did to my property.
-------------
cj.green@worldnet.att.net (Christopher Green) wrote in message news:<c31fa7b1.0409221506.55ea920d@posting.google.com>...
splitman2000@hotmail.com (splitman2000) wrote in message news:<bdf8cf95.0409220810.2e3799e@posting.google.com>...
Falky gave you a good answer.
To oversimplify, it sounds like an enforceable contract. The
requirements of a contract are there: offer, acceptance, consideration
on both sides. The existence of a contract like this doesn't depend on
your acceptance being in writing, only the difficulty of proving there
was one if push came to shove.
If your friend wanted to breach the contract, you could sue and be
awarded damages. You would have to prove that there was a contract,
that he breached it, and that you were out money because of the
breach. Small Claims courts deal with disputes over informal contracts
all the time.
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splitman2000@hotmail.com (splitman2000) wrote in message news:<bdf8cf95.0409240817.1b769d9d@posting.google.com>...
Thanks. Like I said in response to Falky's answer, I hope he would
honor the contract to the very end. While knowing that there's an
enforceable contract is reassuring, having to sue him in court should
he breach it is not an entertaining thought as in reality, I would be
hard pressed to prove the extent of the damage he did to my property.
The extent of the damage shouldn't matter that much: it's more
important that something that can be counted as consideration (your
forbearance respecting the damage he did) exist, than that you can
value it exactly.
You don't have to prove that a contract is an equal bargain, just that
a bargain existed.
--
Not a lawyer,
Chris Green
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Thanks.
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