Non Profit Corporate Bylaws Template - Fundamentals of ageement Law
Good evening. Now, I found out about Non Profit Corporate Bylaws Template - Fundamentals of ageement Law. Which is very helpful for me so you. Fundamentals of ageement LawNo matter where you live in North America, you must have seen some humoristic vignettes depicting a not-so-trustworthy Realtor intent at selling a house to some innocent-looking couple. My beloved vignette, which still makes me chuckle today, goes back to a few years ago when I was practicing real estate at United Realty. It complicated a Real Estate Agent of Pompeii Realty, portfolio in hand, in the process of selling a house to an ancient Roman concentrate sometimes colse to 100 Bc . The house is overlooking Mt. Vesuvius. There is a black, threatening, ominous plume of smoke arrival out of the top of the volcano, and the Roman concentrate looks somewhat startled when the Real Estate Agent - big smile on his face - delivers the punchline: " Plus, with a view like this what could perhaps go wrong" !
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What is it exactly that you do when you sign a 'contract' . The term 'contract' means a promise or a set of promises made by one person to another, which the Courts will enforce. A compact can comprise a whole of promises or 'terms' to be performed by whether party. The person who makes the promise is called the 'promissor' and the person who can levy that promise is called the 'promissee' . If the compact contains some mutual promises, each party will be both a promissor and a promissee. Contracts of purchase and Sale of land and interests in land normally have lots of mutual promises. Contracts are a crucial part of every firm transaction, but not nearly as much as in Real Estate. For instance, some contracts are made verbally while others are made by naturally exchanging letters or even e-mails. This is not the case in Real Estate, where it is a requirement at Law that contracts be written down in normally lengthy legal forms to avoid uncertainty, ambiguity and to be binding .
A compact has seven important elements:
Offer.
Acceptance.
Consideration
Legal Intent.
Capacity.
Legal Object.
Genuine Consent.
Each of these elements must be gift for a compact to be binding and enforceable. Let's recognize them individually.
Offer
An offer is the promise made by one party to another. Save and except in Real Estate where the offer must be in writing, an offer can be made in any form. In all circumstances, however, an offer must be made in clear an unambigous terms. If more than one interpretation can be given to an offer, neither interpretation will be followed by the Courts. There are 'unilateral' and 'bilateral' offers. Offers to purchase real asset are bilateral, i.e. Containing the exchange of mutual promises.
An offer is not made forever. Offers can whether be finalized, when all mutual promises are fulfilled. Or they can expire, if not timely accepted. Or they can be released, if one of the parties does not - or cannot - deliver on the promise. Offers can also be revoked after acceptance, unless a term of the offer stipulates that revocation is not allowed.- as it is now the case in British Columbia for offers spellbinding land. A 'counter-offer' is naturally an offer from the offeree back to the offeror. The legal succeed of a counter-offer is to close the original offer and substitute the offer of the offeree. What this means in practicality is that if the counter-offer is not accepted, the offeree cannot try to accept the first offer unless it is tendered again by the offeror. This is a point often times neglected in Real Estate, which has caused some tears to be spilled.
Acceptance
The acceptance, like the offer, must be given in clear terms. It must be a safe bet act. For instance, an offer cannot state "If I don't hear from you, I will assume you have accepted". Doing nothing will never be thought about legal acceptance. The rule at Law is that where an offer is required by statute to be in writing, then also the acceptance must be in writing in order for the offer to come to be a compact binding on both parties. Such is the case in Real Estate. An acceptance has no succeed until it is communicated to the offeror. Transportation can be made by 'instantaneous means' as in the case of telephone or teletype or fax communications, or e-mail or hand-delivery and by 'non-instantaneous means' such as postal mail. The Law gives the responsibility to the offeror to specify how he wants the offer to be accepted. If the offeror chooses a formula like slow mail, then he assumes the risks complicated in that type of assistance (such as misdelivery).
Consideration
For an offer and acceptance to form a compact there must be observation or the compact must be signed under seal. observation is defined as 'some right, advantage or behalf accruing to the promissor or some forebearance, detriment, loss or otherwise responsibility suffered by the promissee' . What this means is that the party trying to levy the compact must have 'paid' something in exchange for the promise of the other party. observation must be of real value, but it does not have to be money. For example, a mutual exchange of promises is observation per se.
Legal Intention
For a person to be bound to a contract, he must seriously intend to originate legal obligations. For example, spellbinding a guest for supper would normally not be thought about a compact intended to originate legal obligations. The Law presumes that there is legal intention in a compact spellbinding total strangers. On the other hand, if the compact is between family members the Law presumes that there is no intention to be so bound (non arm-length transaction). However, this presumption can be reversed if there is evidence to show otherwise.
Capacity
Even when all the foregoing important elements exist, a compact can still be void, voidable or illegal. A void compact is one which is deemed at Law never to have existed. A voidable compact is slightly different: it exists until it is repudiated by one of the parties. An illegal compact is one which is made for an illegal purpose, and which is therefore always void. Examples of voidable contracts are the ones made when one of the parties is an infant, i.e. A minor or under the majority age. In this case the compact can be voided by the infant. Likewise, when one of the parties is legally insane, the compact is voidable. A special case is a compact stipulated when one of the parties is a minute firm or corporation. Three questions must be first answered before the compact can be enforceable: 1) whether the corporation does in fact exist and 2) whether it has the capacity to enter into the compact and 3) whether the person signing on behalf of the corporation is, in fact, the authorized signatory.
Legal Object
Quite aside from blatantly illegal contracts such as, for examples, contracts to commit a crime or tort until recently here in British Columbia safe bet other types of contracts where thought about illegal. For example, until the mid-80's contracts spellbinding the sale of land made on a Sunday were deemed to be a contravention of s.4 of the Lord's Day Act(now repealed) and, thus, illegal and void. Since then, the supreme Court of Canada has ruled that the application of s.4 - in fact the whole Lord's Day Act - is unconstitutional in that it infringes on the relaxation of conscience and religion guaranteed by the Canadian hire of rights and Freedom.
Genuine Consent
If one of the parties makes a misrepresentation or if the compact contains an inherent mistake, the compact may still not be binding. A misrepresentation is, by definition, a statement which is false and which must have induced one of the parties to enter into the contract. A misrepresentation can be innocent, negligent or fraudulent and distinct remedies are ready to the party suffering damages because of the nature of the misrepresentation. If the representation is innocent, the party can sue for rescission of the contract. In the case of negligent or fraudulent misrepresentation, the affected party can sue for damages as well. Although misrepresentation requires a statement to be made, in Real Estate silence too can succeed in some form of misrepresentation. Disclosure of latent defects is one such example: failure to disclose latent defects on the part of the distributor will not, by itself, affect the consent of the parties but will have similar consequences as misrepresentation.
In the case of inherent mistake, true consent of the parties does not exist. The logic behind this plan is that the parties were negotiating for a field matter other than the one stipulated in the contract. A exact type of mistake is sometimes referred to as 'non est factum' , Latin for 'this is not my deed' . This occurs when a person executes one form of document reasoning the document is something else. Duress and undue affect both affect the genuine consent element of a contract. Duress occurs when a person is forced to enter into the compact against his will. As a result, the Courts will find the compact voidable at his option. Undue influence, on the other hand, is more subtle. Like duress it results in one party losing his free will to compact out. However it occurs more oftentimes when a person is in a first-rate or dominant position in relation to an additional one and uses this influential position to induce the other to enter into the contract. Again, if undue affect is found, the compact is voidable at the option of the innocent party.
Luigi Frascati
luigi@dccnet.com
http://www.luigifrascati.com
Real Estate Chronicle
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