Archive for the ‘Contracts’ Category
Check Out the Other Party Before You Sign a Contract
A contract is only as good as the ability of each party to perform it. So, it’s important to check out the other party before signing a contract. It’s easy to do in Florida. We have lots of free online databases. Here are a few:
1-Florida Division of Corporations: Here you can search for the correct legal name and officers of corporations, limited partnerships and LLCs, and partners of partnerships and LLPs. You can also check for fictitious names, judgment liens on personal property, and federal liens.
2-Florida UCC: Here you can search the Florida Secured Transaction Registry for UCC financing statements listing collateral for loans and other obligations.
3-Clerk of Court: To find the Clerk of Court for a county, search Google for “Clerk of Court X County Florida” where X is the name of the county. If you cannot find it there, try the Florida Association of Court Clerks & Comptrollers. When you find the Clerk of Court website, search the court records for dockets of past and pending lawsuits and check the Official Records for judgments.
4-Google: A plain old Google search of the name of the other party to the contract often yields helpful information. If there are too many search results, narrow it down by city and state.
5-Lawyer: Your Florida lawyer can guide you not only in drafting and reviewing the contract, but also in searching for information about the other party. Lawyers are trained in searching for case law and statutes, and this search ability is also useful in finding other information.
Happy background checking.
Jim Martin 2/17/10
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
There’s No Such Thing as a Standard Contract
When a client tells me “I signed a standard contract”, a red flag pops up in my brain telling me this is client code for “I didn’t read the contract before I signed it.”
There are many reasons people don’t read contracts before signing them. Often it’s because someone told them it’s a standard contract and they don’t want to rock the boat by reading it and asking questions.
The problem with this is that most contracts are not standard. Most contracts have wording in them that favors one side over the other. For example, I have a standard contract for sale of real estate when my client is the seller and a different standard contract for purchase of real estate when my client is the buyer. One has wording favoring the seller, and the other favors the buyer.
Most contracts beg to be negotiated. But you have to read them to know this. That’s when you find out things that you are giving up when you sign. And after you sign, it’s too late to negotiate the wording.
Many years ago, there were two kinds of contracts: (1) contracts typed on a typewriter and (2) contracts printed by a commercial printer. You could easily tell the difference when looking at them. Typewriters used Courier font and commercial printers used Times Roman font. Lawyers had the habit of referring to the commercially-printed Times Roman contracts as standard contracts.
But even back then this was not entirely accurate. Each printer had its own set of forms. If you compared forms from Ramco, Seminole, and Blumberg you would find many differences between them. Yet, the habit of referring to them as standard forms persisted. Even to the present day.
So, when a client tells me it’s a standard contract the first thing I ask is “who’s standard is it?”
Jim Martin 11/29/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.
Why I Don’t Like Arbitration Clauses in Contracts
A recent Florida case illustrates why I don’t like arbitration clauses. If the arbitrator makes a decision that misapplies the law, the losing party is stuck with the bad decision. Call me old fashioned, but I want to be able to appeal the case when the decision-maker misapplies the law. Iwant the chance for an appellate court to review what the lower court did, listen to my argument, then make its own decision on the application of the law to the facts. You don’t get that in final and binding arbitration.
The case is Commercial Interiors v. Pinkerton, which was released the week of September 28, 2009, by the Florida Fifth District Court of Appeal as Case No. 5D08-1493. The contract between Pinkerton and Commercial Interiors had an arbitration clause that required disputes be submitted to an arbitrator. A dispute arose. It went to arbitration. One side claimed the contract was invalid. The arbitrator disagreed. That side filed in state court, and the state court judge agreed that the contract was invalid. Then the other side appealed, and the appellate court decided that id did not matter whether the arbitrator applied the law correctly or not. The arbitrator’s decision stands, good or bad.
“An award of arbitration may not be reversed on the ground that the arbitrator made an error of law.” This is what the court quoted from a 1989 Florida Supreme Court opinion. It noted that, “Arbitration, after all, is a form of alternative dispute resolution.” And so it is. I just don’t like that you cannot appeal when the arbitrator makes an error of law.
What’s the best way to avoid this? Do not write arbitration clauses into contracts. Do not sign contracts with arbitration clauses in them. If you have a choice, that is.
Jim Martin 10/5/09
FLORIDA BAR STATEMENT The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask the lawyer to send you free written information about the lawyer’s qualifications and experience.