In general terms, a valid contract requires offer, acceptance, and consideration. An offer is made by an outward manifestation or the offeror, and may contain language as to what is required for acceptance. Acceptance is made by the offeree, and in many instances actions, payment, or performance can be considered valid acceptance. Consideration can come in the form of payment or performance. Promissory Estoppel however allows for promises without consideration if certain terms are met. In Pennsylvania the statute of frauds enumerates that contracts for the sale of goods for a price of $500 or more must be in writing. However, in certain circumstances an unwritten contract for the same may be enforceable. Contracts for the sale of real property / real estate in Pennsylvania must also be in writing.
The Uniform Commercial Code (UCC) and Pennsylvania Uniform Commercial Code (PA UCC) are applicable to contracts for the sale of goods between merchants.
This document only provides a brief summary of a few contract terms and issues. An indemnity clause, indemnification clause, or hold harmless clause, can deal with a first party defending a second party from third party claims against or through the first party. A time is of the essence clause can be used to make parties accountable to schedules and time of performance under a contract. An integration clause / entire contract clause is typically meant to have language enumerating that the contract is the entire contract, it supersedes all prior contracts and negotiations, and that there is not any external parole evidence, extrinsic evidence or applicable antecedent negotiations. A waiver clause or non-waiver clause can serve to highlight that waiving or not pursuing one right under a contract does not waive all rights under a contract. A termination for convenience clause may allow or disallow one party to terminate the contract for convenience with written notice. An assignment and novation clause may address a party’s rights to assign or substitute parties and/or contracts to the original contract. An enurement clause (enure clause, inure clause, or inurement clause), survival clause, or binding effect clause, may be added to bind successors and assigns of contractual parties. A severability clause may be included and have language indicating that if any part of the contract is found to be unenforceable, illegal, or invalid, that the rest of the contract is still enforceable. A warranty clause may be used to warrant work or material during or after performance. A reparation clause may grant a party the right to correct deficiencies, warranty issues, or contract breaches. An equal opportunity clause may highlight one or more parties being an equal opportunity employer. A headings clause or titles clause may highlight that contract titles are only for convenience, and not to change contract meaning or contract interpretation. A defense of drafting clause may be added to identify that there shall not be a contract interpretation based on who drafted a contract, including a party, party’s legal counsel, or party’s legal representative. An agreement executed in counterparts clause may be added to identify that a contract can be signed in counterparts and transmitted electronically. A clause or clauses may also be added to address confidential material, pictures, copyrights, inventions, discoveries, patents, and the rights to intellectual property. Additional clauses are also discussed in the Construction Contracts Supplement at MentchLaw.com.
Sometimes things do not always go as planned, either with the intentional action or inaction of one party, or through other unforeseen circumstances. A party can breach a contract by not performing as per the contract, or not paying as per the contract. Sometimes before the actual breach there can also be anticipatory repudiation of one party by refusing to perform or stating an inability to perform. Contracts often list certain remedies for contract issues. A liquidated damages clause, often referred to as an LD clause, can serve to assign dollar values to contract issues. An example would be things such as delays or a failure of one party to perform by a certain date, and may be expressed in dollars per day. It may be wise for a party subject to a liquidated contract damages clause to have something in the contract language limiting the total maximum liquidated damages. This can have a negative effect of monetary damages for failure to perform, but a positive effect of helping to limit maximum damages and liability exposure. Expectation damages are meant to put a party in the same position as if the other party had performed as per the contract. Consequential damages, or special damages, can be ancillary damages to a party as a consequence of another party’s failure to perform properly. Consequential damages are often specifically listed in the contract language as being forbidden to be pursued by either party against the other party. Contractual language may also include legal language relating to applicable law, applicable venue for legal proceedings, payment of attorney’s fees, and methods of dispute resolution. Dispute resolution language may include mediation clauses, arbitration clauses, or clauses identifying the applicable court of law for any issues to be tried. It is also worthy of mention, that Pennsylvania requires damaged parties to use at least ordinary care and diligence to minimize contract damages. A limitation of liability clause can address contractual limits of liability, and often may attempt to limit liability to the face value of a contract.
Small businesses should consider a legal documents lawyer / legal documents attorney to help then navigate large corporate contracts from corporate law lawyers / corporate law attorneys. There are many more potential issues with contracts than enumerated here. It is recommended that all commercial clients select a good commercial lawyer / commercial attorney to work on contracts. Lawyers for business law can be somewhat specialized. Whether you are doing a search for a business law lawyer / business law attorney, business contract lawyer / business contract attorney, business lawyer near me / business attorney near me, small business lawyer near me / small business attorney near me, or for corporate legal assistance for a larger business with an in-house corporate lawyer / corporate attorney / corporate counsel, it is hoped that you will give consideration to working with Mentch Law. Mentch Law offers help for businesses. Setup a business lawyer consultation today.
Attorney Kirk E. Mentch, Esquire