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CONTRACTS 101
SPARK LAW & ORDER
BY
RUSS BROWN
R.D. BROWN, PLC
RDBROWN@RDBROWNLAW.CO
M
Negotiation and Drafting
What is a Contract
 a: a binding agreement between two or more
persons or parties ; e spe cially one legally
enforceable
 b: a business arrangement for the supply of
goods or services at a fixed price
-Merriam-Webster
Have you agreed to a contract?
How many people think they are party to a
contract?
Examples
Examples
 Credit Card Agreement
Examples
 Credit Card Agreement
 Signed agreement related to a job
Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account
Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account
 An agreement to buy something from a friend
Examples
 Credit Card Agreement
 Signed agreement related to a job
 Online agreement when starting a Facebook
or email account
 An agreement to buy something from a friend
 Buying something from a store
Facebook terms and conditions
 Switch to Firefox
Civil Legal Duties
What does it mean to Contract?
Contracts are about:
What does it mean to Contract?
Contracts are about:
 Bargaining
What does it mean to Contract?
Contracts are about:
 Bargaining
 Coming to an agreement
What does it mean to Contract?
Contracts are about:
 Bargaining
 Coming to an agreement
 Being willing to be legally bound to your side
of that agreement, as long as the other party is
bound to theirs
Elements of contracting
 Offer
 Acceptance
 Consideration
Elements of contracting
 Offer
 Acceptance
 Consideration
 These are the basic elements, but contract law
can get a lot more complicated
Offer
 An offer is an invitation to make a contract
Offer
 An offer is an invitation to make a contract
 Examples?
Offer
 An offer is an invitation to make a contract
 Examples?
 Displaying a take it or leave it contract online
 Bidding on ebay
 Putting a price tag on an item in a store
Offer
 An offer is an invitation to make a contract
 Examples?
 Displaying a take it or leave it contract online
 Bidding on ebay
 Putting a price tag on an item in a store
 Offers can go back and forth (but don’t have
to) until…
Acceptance
 The point at which one party agrees to the
other parties offer
 Examples
 Clicking that you accept the online contract
 Winning an ebay auction
 Buying the item from the store
Consideration
 Generally, courts will only enforce a contract if
both sides are getting something.
 What each side gives the other is called
consideration.
Is this a contract?
In each of the following examples, ask yourself
if there is mutual consideration?
Is this a contract?
 You order a book of Amazon.com. Your credit
card is charged, but no book ever shows up.
 Was there a legally enforceable contract?
Is this a contract?
 You order a book of Amazon.com. Your credit
card is charged, but no book ever shows up.
 Was there a legally enforceable contract?
 Yes, you agreed to pay Amazon.com money
and they agreed to send you a book.
Is this a contract?
 Last year, your uncle promised you an iPhone
for your 18th
birthday. When you turned 18, he
gave you his old broken basic cell phone.
 Was there a legally enforceable contract?
Is this a contract?
 Last year, your uncle promised you an iPhone
for your 18th
birthday. When you turned 18, he
gave you his old broken basic cell phone.
 Was there a legally enforceable contract?
 No, while your uncle made a promise, he did
not receive any consideration in return.
Consideration has to be more than good
feelings.
Is this a contract?
 You signed up for a week long summer
basketball camp which cost $100. You paid
and went to the camp. When you got to the
camp, they just had you watch football movies
all day.
 Was there a legally enforceable contract?
Is this a contract?
 You signed up for a week long summer
basketball camp which cost $100. You paid
and went to the camp. When you got to the
camp, they just had you watch football movies
all day.
 Was there a legally enforceable contract?
 Yes. You agreed to pay money to the camp
and they were supposed to give you
basketball training.
Negotiation and drafting activity
 We are going to negotiate and draft a contract
 Negotiating and drafting contracts is
something that a lot of lawyers do—including
hopefully me.
 The goal is to come to an agreement.
 This requires each side to compromise, so that
they can get what they really want—to make a
deal.
When drafting be sure to
 Include all the terms
 Don’t be afraid of creative solutions
 Use specific binding language:
 “Shall” not “Will”
 X shallpay Y $10.
 Y shallwash X’s car.
 Not:
 X willpay Y $10.
 Y willwash X’s car.
Good Drafting Techniques
 Plain Language
 Include a Preamble
 Offerand
Acceptance
 The MirrorImage
Rule
 Binding Offers
Versus Invitations
to Bargain
 Revocability of
 Consideration
 Authorized
Representation
 ProperGrammar
Types of University Contracts
 Affiliation and
International Program
Agreements
 Athletic-Specific, or
Student-Specific
Contracts (non-
procurement in nature).
 Interagency Cooperation
Agreements (IAC) &
Inter-local Agreements
 Museum and Exhibit
Agreements
 Prof. Service
Agreements (for
individuals not organized
as a business)
 Procurement Contracts;
Vendor Services
 Sponsored Research
Contracts and
Sponsored Projects
 University-Provided
Services
Major Areas within Every
Contract
Parties
Effective Date and
Terms
Statement of
Service (SOS)
Pricing
Performance
Standards
Warranties
Remedies
Risk Allocation
Boilerplate
Signatures
Common Contractual Terms
Three commonly negotiated/contentious
provisions:
1. Warranties
2. Indemnification [protection against loss or
liability from 3rd
party
claims]
3. Liability & Damages [legal responsibilities]
Business Law & Order - April 21, 2014 - Contracts 101
Government Contracting
Questions?

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Business Law & Order - April 21, 2014 - Contracts 101

  • 1. CONTRACTS 101 SPARK LAW & ORDER BY RUSS BROWN R.D. BROWN, PLC RDBROWN@RDBROWNLAW.CO M Negotiation and Drafting
  • 2. What is a Contract  a: a binding agreement between two or more persons or parties ; e spe cially one legally enforceable  b: a business arrangement for the supply of goods or services at a fixed price -Merriam-Webster
  • 3. Have you agreed to a contract? How many people think they are party to a contract?
  • 6. Examples  Credit Card Agreement  Signed agreement related to a job
  • 7. Examples  Credit Card Agreement  Signed agreement related to a job  Online agreement when starting a Facebook or email account
  • 8. Examples  Credit Card Agreement  Signed agreement related to a job  Online agreement when starting a Facebook or email account  An agreement to buy something from a friend
  • 9. Examples  Credit Card Agreement  Signed agreement related to a job  Online agreement when starting a Facebook or email account  An agreement to buy something from a friend  Buying something from a store
  • 10. Facebook terms and conditions  Switch to Firefox
  • 12. What does it mean to Contract? Contracts are about:
  • 13. What does it mean to Contract? Contracts are about:  Bargaining
  • 14. What does it mean to Contract? Contracts are about:  Bargaining  Coming to an agreement
  • 15. What does it mean to Contract? Contracts are about:  Bargaining  Coming to an agreement  Being willing to be legally bound to your side of that agreement, as long as the other party is bound to theirs
  • 16. Elements of contracting  Offer  Acceptance  Consideration
  • 17. Elements of contracting  Offer  Acceptance  Consideration  These are the basic elements, but contract law can get a lot more complicated
  • 18. Offer  An offer is an invitation to make a contract
  • 19. Offer  An offer is an invitation to make a contract  Examples?
  • 20. Offer  An offer is an invitation to make a contract  Examples?  Displaying a take it or leave it contract online  Bidding on ebay  Putting a price tag on an item in a store
  • 21. Offer  An offer is an invitation to make a contract  Examples?  Displaying a take it or leave it contract online  Bidding on ebay  Putting a price tag on an item in a store  Offers can go back and forth (but don’t have to) until…
  • 22. Acceptance  The point at which one party agrees to the other parties offer  Examples  Clicking that you accept the online contract  Winning an ebay auction  Buying the item from the store
  • 23. Consideration  Generally, courts will only enforce a contract if both sides are getting something.  What each side gives the other is called consideration.
  • 24. Is this a contract? In each of the following examples, ask yourself if there is mutual consideration?
  • 25. Is this a contract?  You order a book of Amazon.com. Your credit card is charged, but no book ever shows up.  Was there a legally enforceable contract?
  • 26. Is this a contract?  You order a book of Amazon.com. Your credit card is charged, but no book ever shows up.  Was there a legally enforceable contract?  Yes, you agreed to pay Amazon.com money and they agreed to send you a book.
  • 27. Is this a contract?  Last year, your uncle promised you an iPhone for your 18th birthday. When you turned 18, he gave you his old broken basic cell phone.  Was there a legally enforceable contract?
  • 28. Is this a contract?  Last year, your uncle promised you an iPhone for your 18th birthday. When you turned 18, he gave you his old broken basic cell phone.  Was there a legally enforceable contract?  No, while your uncle made a promise, he did not receive any consideration in return. Consideration has to be more than good feelings.
  • 29. Is this a contract?  You signed up for a week long summer basketball camp which cost $100. You paid and went to the camp. When you got to the camp, they just had you watch football movies all day.  Was there a legally enforceable contract?
  • 30. Is this a contract?  You signed up for a week long summer basketball camp which cost $100. You paid and went to the camp. When you got to the camp, they just had you watch football movies all day.  Was there a legally enforceable contract?  Yes. You agreed to pay money to the camp and they were supposed to give you basketball training.
  • 31. Negotiation and drafting activity  We are going to negotiate and draft a contract  Negotiating and drafting contracts is something that a lot of lawyers do—including hopefully me.  The goal is to come to an agreement.  This requires each side to compromise, so that they can get what they really want—to make a deal.
  • 32. When drafting be sure to  Include all the terms  Don’t be afraid of creative solutions  Use specific binding language:  “Shall” not “Will”  X shallpay Y $10.  Y shallwash X’s car.  Not:  X willpay Y $10.  Y willwash X’s car.
  • 33. Good Drafting Techniques  Plain Language  Include a Preamble  Offerand Acceptance  The MirrorImage Rule  Binding Offers Versus Invitations to Bargain  Revocability of  Consideration  Authorized Representation  ProperGrammar
  • 34. Types of University Contracts  Affiliation and International Program Agreements  Athletic-Specific, or Student-Specific Contracts (non- procurement in nature).  Interagency Cooperation Agreements (IAC) & Inter-local Agreements  Museum and Exhibit Agreements  Prof. Service Agreements (for individuals not organized as a business)  Procurement Contracts; Vendor Services  Sponsored Research Contracts and Sponsored Projects  University-Provided Services
  • 35. Major Areas within Every Contract Parties Effective Date and Terms Statement of Service (SOS) Pricing Performance Standards Warranties Remedies Risk Allocation Boilerplate Signatures
  • 36. Common Contractual Terms Three commonly negotiated/contentious provisions: 1. Warranties 2. Indemnification [protection against loss or liability from 3rd party claims] 3. Liability & Damages [legal responsibilities]