Not correct. For a contract to hold up in court is has to fair, equitable and just for both parties... good contractors know that and write fair contracts. I write better contracts, included in mine are liberal warranty terms...but also included are clause to protect myself if the client fails to pay progress payments and stalles the job then demands we stay on schedule.
Phil Scott
Thats only true if the contract is largely rational and decent.
but would not be true for instance if I said you must pay or I get rights to sleep with your wife or force you sell your blood. That goes beyond 'the reasonable man' statutes.
It has to be 'reasonable' or its not enforceable. Most people dont know that and get roped into rip off deals by business and government all the time... the fact that you signed does not mean you have to pay if payment puts you into an unviable, (not survivable or undue damaging position) therefore unreasonable situation.
There are laws that address this.
For instance lets say you owe me 2 dollars all legal... I cannot force you to sell your heart medicine pills to pay me... your life is worth more than the 2 dollars in the scales of justice....none of this is widely known, but if you know that you can write better contracts, be a more decent person, and prevent some asshole from ripping you off with a bogus contract (and those are getting more and more common from corporations today, especially the phone company, but ongoing litigation and law suits have prevented them for instance from cutting some sick old ladys life line by killing her phone service for non payment)
etc. The actual law is not what most people some idiot attorneys think it is... there is also the issue a right to a jury trial and what a jury will allow... they will not allow a creditor to decimate your life and starve you do death for instance.
Maybe.
If the contract contains any unfair, criminal, bogus or unreasonable clauses though the entire thing can be thrown out by a judge or a jury on the basis of it being deceptive.
What contractors and many large corporations tell people 'you signed you are liable' is only true if there was no deception or unreasonable aspects involved when enforcement time comes.
Now before you get hot and argue let me fill you in...first I am no genius, and am not a lawyer. But I am 64 years old and have written and negotiated hundreds if not thousands of contracts in my life large and small and been party to as project consultant to contracts well over 100 million dollars...ive seen all sorts of problems and lawsuits and messes hitting the wall and read many books and talked to dozens of lawyers on these issues...and administered many contracts.
the bottom line...you cannot try to force blood from a turnip no matter what your contract says...people that write and try to enforce those think it protects them...it doesn't. Ive seen 10 million dollar jobs run up to 50 million because some idiot thought he could enforce a contract on a contractor going bankrupt.... sorry...not workable. Better to work the situation out.
Once you beat a contractor or the reverse a customer into the dirt everyone looses. The contract is mute compared to the larger issues.
I typed this..I will not retype it. If there is some agrument read it again or get smart with me... this all Im going to say on the subject.
Phil Scott
I agree with the sentiments you express. However a contract can be as unfair and inequitable as the parties agree it to be provided it meets the seven requirements:
1) Offer2) Acceptance
3) Consideration4) Legal purpose
5) Competent parties6) No duress
7) Capable of interpretation.In respect of number seven, where there is ambiguity, it is resovled against the interest of the person who wrote the contract.
Ken
SNIP
Fine.
"It has to be 'reasonable' or its not enforceable. Most people dont know that and get roped into rip off deals by business and government all the time... the fact that you signed does not mean you have to pay if payment puts you into an unviable, (not survivable or undue damaging position) therefore unreasonable situation. "
This is one of the dumbest things I ever heard. So, you're saying if I sign a contract to buy a boat for $200k, agreeing to make payments, and then say, "It wasn't reasonable, If I have to continue to make payments on it, then I'll have to sell my house and won't have enought money to eat" , a court is gonna say, OK, no problem, it just wasn't a reasonable contract, it's invalid, you're off the hook?
If that were the case, people would be bailing on all kinds of contracts for all kinds of BS reasons. The court isn't there to go back and decide how fair or reasonable the contract was. That was up to the parties that entered into it. As someone else pointed out, as long as it meets the important tests listed and doesn't violate law, then it's going to be held valid. Getting a bad deal by signing a bad contract doesn't mean a court is going to undo it and let you walk.
"It's known as an "Unconscionable Contract" and there provisions under which a contract may be deemed unenforceable owing to such provisions. However, in order to meet such a criterion, the abuse has to be extreme and simply a higher than market value in and of itself would be unlikely unless it were truly and extreme case. In general, it would require some sort of deceit or other heinous action on the part of one party to create such a condition. That somebody agreed to pay $200k or a boat that might only be worth $150k or so would be very unlikely to elicit such a reaction unless there could be shown a willful misrepresentation on the part of the seller. Simply the excuse of not being able to afford the payments would not be sufficient, certainly.
Here's a summary of the general provisions typical...
"Unconscionable contracts are so unfair to one party that the contract becomes unenforceable, usually with respect to consumers induced to sign contracts via high pressure sales techniques or who misunderstood the requirements and conditions. Such contracts hide procedurally unfair terms in the fine print, contain exorbitant price or limit buyer's remedy (waiver of buyer's defenses, prohibiting buyer's recovery in case of product defects, limiting remedies to useless options, giving a seller the right to reposess items sold on credit regardless of payoffs
on some of them)."
Yes, I agree, you MIGHT win a case if you had some or all of these conditions present. But most of those type cases are brought against companies by the govt for doing that list of things many times to large numbers of consumers. I didn't see anything in the contract that started this thread that qualifies as grounds for throwing out the whole contract. For sure, it's a bad contract for the homeowner and I wouldn't deal with the company. I'd say much of it is unreasonable too, but I think they would likely hold up in a court of law.
The problem I had was a previous poster suggesting that a contract had to be "reasonable" for it to be enforceable. Most people would say signing a contract to pay $200K for a boat that was only worth $150K was not reasonable. But I think we agree, it would be hard to find a court to rule the contract invalid on that basis. Courts don't get involved in figuring out if the contract was really fair, if somone should have gotten a better deal etc, unless it's way out of line and usually then in a number of areas that are totally over the top.
And you checked to see if he had insurance right? What that clause is stating as I read it, as a contractor, that if you sue, and you already
sound like one that would, HIS outlay of liability isnt going to be more than the amount you agreed to. His INSURANCE company on the other hand, isnt listed, and THATS what insurance is for.
His insurance company isn't listed because they are not a party to the contract. This section is crystal clear. The contractor has limited his maximum liabilitly to the total cost of the job. If the job costs $25K and he winds up causing $100K damage, he's off the hook for the other $75k and so is the insurance company. The lawsuit would be against the contractor. The insurance company will defend it in court, simply saying the contract clearly lists our clients maximum liability at $25K, which is exactly what it does. He could have $1mil in insurance, but if the homeowner caps his limit in the contract, he's out of luck.
It's known as an "Unconscionable Contract" and there provisions under which a contract may be deemed unenforceable owing to such provisions. However, in order to meet such a criterion, the abuse has to be extreme and simply a higher than market value in and of itself would be unlikely unless it were truly and extreme case. In general, it would require some sort of deceit or other heinous action on the part of one party to create such a condition. That somebody agreed to pay $200k or a boat that might only be worth $150k or so would be very unlikely to elicit such a reaction unless there could be shown a willful misrepresentation on the part of the seller. Simply the excuse of not being able to afford the payments would not be sufficient, certainly.
Here's a summary of the general provisions typical...
"Unconscionable contracts are so unfair to one party that the contract becomes unenforceable, usually with respect to consumers induced to sign contracts via high pressure sales techniques or who misunderstood the requirements and conditions. Such contracts hide procedurally unfair terms in the fine print, contain exorbitant price or limit buyer's remedy (waiver of buyer's defenses, prohibiting buyer's recovery in case of product defects, limiting remedies to useless options, giving a seller the right to reposess items sold on credit regardless of payoffs on some of them)."
No need for you to be a complete idiot. You will have to study the law to determine how these judgements are made.
and example would be if you purchased a 200,000 boat on the internet, signed the contract and the guy shipped you a cracker box toy boat then tried to collect the 200k.... a judge would throw it out of court the seller might be chargeable with fraud or not depending on how his ad was worded.
etc/
that was an extreme example.
Yourself... you are not going to ever get bright if you take this trasher view..that screens out insight... its not bright of you.
all this is established law. its not magical... nor uncommon sense.
and
You are spinning. of course there are a majority of cases where contracts are fully enforceable and should be enforced..I was discussing the exceptions very clearly... you are not doing yourself any favors by your attitude.
sorry but Im going to have to pass on any further conversation with you.
Incorrect...that IS why the court is there. That is entirely why the court is there...and that is why people take these things to court...the court decides. That the basis of law and juris prudence. You dont know that. Now you do. If you are smart, which may not be the case, you will let that bit of wisdom sink in, or at least do some research. Being an abusive or spinning truly does not become a person.
That was up
Not correct the lists of tests was short.. there are others, primarily covered by 'reaonable man' statutes since you have correctly mentioned fraud here.
Getting a bad deal by signing a bad
Correct in some cases, not correct in others...it it goes to a jury trial, the jury decides it. You have chosen to be myopic and see only one VALID side of the situation then you are beating the drum for that side and being proud or whatever...fine..but then as you deny the other side of the argument you become less bright you see.
Phil Scott
>
Its good to see you doing some research. There are many factors in any contract that can render it unenforceable and those vary state to state and with personal conditions even.. for insance if you got a bag lady to sign a 100 million dollar contract to buy a building...she's legal of sound mind and body... a court would ask you what in the hell you were thinking...and would not even attempt to hold her to the contract. Im sure you think thats not the case... not my problem.
Later..
Phil Scott
"and example would be if you purchased a 200,000 boat on the internet, signed the contract and the guy shipped you a cracker box toy boat then tried to collect the 200k.... a judge would throw it out of court the seller might be chargeable with fraud or not depending on how his ad was worded. "
Do you really think so? Duh! That'a an example of fraud. Was that what we were talking about? The OP posted a contract that was a bad one for a homeowner to sign. It was loaded in the favor of the contractor. However, that's a long way from having a court rule it unreasonable. Court's don't get involved in if you paid too much, could have gotten a better deal, later found out it could have been done cheaper, unless it's something really extreme. There was nothing even close to that extreme in the OP's contract, so why suggest people can just get out of contracts cause they are "unreasonable or would cause undue hardship?" And now you;re changing the story, by switching to an example of total fraud.
"sorry but Im going to have to pass on any further conversation with you."
Yes, please do and avoid any further embarrassment to yourself!
" Incorrect...that IS why the court is there. That is entirely why the court is there...and that is why people take these things to court...the court decides. That the basis of law and juris prudence. You dont know that"
I know you just contradicted yourself, cause you're continuing to rant. The court isn;t there to undue contracts like the one that started this thread. What you suggested was that it's easy to get out of a contract that's "unreasonable". That's simply not true. And who the hell is going to go around litigating BS like this? For a $20K dispute, you'll wind up with more than that in legal fees. The right thing is to figure out if the contract is reasonable BEFORE signing it.
"Correct in some cases, not correct in others...it it goes to a jury trial, the jury decides it. You have chosen to be myopic and see only one VALID side of the situation then you are beating the drum for that side "
Oh great, and now the avg joe is gonna get out of an "unreasonable" contract with a full jury trial? Sure, why not pay $25 or $100K in legal fees screwing around. Are you for real? I'm not myopic, I'm realistic. If anyone signs that original contract, it's very likely gonna be enforceable. And further, even if it's not, you'll waste more money in legal fees than the contractor screwed you for to begin with.
Why don't you get your insurance money FIRST, then get a contractor. Are they not doing that? Get a contractor from your local yellow pages. I know first hand that LOADS of contractors are coming from all over the US to FL to repair from last year's hurricanes.
May I ask why you waited a year to get your home repaired? Was it lack of contractors available? I wonder if your insurance company will even pay this late in the game. (Yes, I am in FL)
avoid them like mexican tapwater. most of the verbiage is standard but the hold harmless clause is not good. you want someone that guarantees thier work. if you use them have them sign a lien waiver prior to construction to protect you. a labor controversy can be someone not getting paid. that worker then puts a workers lien on your home.
have fun. often the ins company has a list of approved builders.the good old network can work both ways, such as providing a superior product.
El lunes, 1 de agosto de 2005, 20:21:39 (UTC-5), Doc escribió:
It's onerous and very definitely all written to favor the contractor. Excessive imo and worrisome that a contractor goes to such extremes in the verbiage to create a skewed playing field for himself in case of any dispute. Surprisingly, unless it's somewhere else, it doesn't say anything about how long the proposal is valid from the date of tender to acceptance.
A couple of specifics --
3,12. You've got to come up with the deductible first and either have the amounts inside two weeks of their billings or face usurious interest. Whether the insurance company will pay the promptly is something you'll have little control over; some are pretty good and will pay up front, others will only begin reimbursement to you when you present them with the contractor's bills. Either way, only 15 days instead of 30 is specifically designed to bleed more money from the customer rather than being a legitimate delay-to-pay penalty clause.
-- tough!
I'd not sign this as is -- I'd make many annotations such as replacing the 15 days with 30; noting payments will be contingent upon the insurance company's payout schedule, etc., on the financial end.
I'd also want to have many references to previous customers to know whether they actually do reasonable work and so the terms don't have much real danger or whether they are, in fact, simply using the contract as an extortion vehicle and are notorious for doing such things.
It's really, really tough in the event of natural disasters to find reputable contractors; the number of bad ones outnumbers good probably at least 5:1 and in major disasters when they out-of-town fly-by-nights show up more like 50:1.
I've been working on getting a contractor to erect a new Trex or Azek deck this fall requiring removal of old with licensing and inspection building under new codes. I had discussed this in this group in the spring but now want to get it done this fall.
With 2 lawyer sons, I have ready access to legal advice and just last week my wife bounced a contract off one son for his opinion. He came back with a list of our own that contractor would need to sign if we sighed his. My wife sent these to the contractor and he withdrew his bid rather than work with us.
Earlier in the year we had rejected a bid similar to this because of all the attached legal garbage.
It should be simple. Contractor should be responsible for his work and any damage that he might incur including that of his employees being injured and I am responsible for paying in a timely manner.
I guess you didn't see this was from 2005?
That is the sign of a bad attorney, but is typical. He should have minimally adjusted the contractor's language to something that would be acceptable to you and not so "in your face" to him. I have done that a number of times. You may need to explain your thinking to him and why it is not a problem for him.
I have done such since at least 2005. :)
It is simple but the more lawyers you add the more complex it gets.
Make a simple contract that has your last sentence, what is to be built, the price, and get on with it. When my step-father was in the business, my mother types up a simple contract, not more than one paragraph for some major kitchen rebuilds. It worked well for years, never had a problem as the work was done properly and at the price agreed. Mom knew how to take care of the inspections too.
The contractor was smart to withdraw. I used to do some part time work years ago. Small jobs, painting, installing windows and storm doors. The only job I ever walked away from was a lawyer. For the few bucks I'd make on a Saturday it was not worth the potential risk of dealing with him.
If you know the contractor by reputation, you don't need a fancy contract. We did a $2million rebuild of our plant and had no contracts like the one in this thread.
I noticed that, but suddenly it may be relevant to the people of Texas.
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