A few weeks ago, I was featured in a Lawyers Weekly article about sharing office space.   The article featured my good friend, Joel Kadish, and I (among others) discussing the pros and cons of sharing office space.   The article also mentioned Dynamic Lawyers‘ new Legal Forms + Video Guides packages.  Here’s the full article in case you’re interested in reading it:

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Here comes Legal Form + Video Guide #8:

Continuing Power of Attorney for Property (Ontario)

This Legal Form can be used to appoint a person to make decisions on your behalf concerning your property and finances.  It can impose limits on your attorney for property.  Also, it is called “Continuing” or “Enduring” to signify that, even after you become incapable of making decisions concerning your own property, this Power of Attorney for Property will still be valid and applicable. We also have a Power of Attorney for Personal Care available on Dynamic Lawyers if you need one, as well as a Living Will (these things are typically done all at the same time with your Last Will and Testament).  Here’s the sample Video Guide that comes with this Continuing Power of Attorney for Property:

Remember: if you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

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Here comes Legal Form + Video Guide #5:

Confidentiality and Non-Disclosure Agreement (Mutual)

This Agreement can be used to restrict both parties’ use and disclosure of confidential information that is being provided to it.  If only ONE party is sharing confidential information and want to restrict the other’s use and disclosure of that information, then you can purchase a ONE-SIDED Confidentiality and Non-Disclosure Agreement.   Here’s the sample Video Guide that comes with this Confidentiality and Non-Disclosure Agreement (Mutual):

Remember: if you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

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Here comes Legal Form + Video Guide #2:

Auto Accident Settlement and Release Agreement (One-Sided)

The “One-Sided” at there’s only One party at fault and only that party wants a release (in exchange for paying).  If both parties may have been at fault, then you can use an Auto Accident Settlement and Release Agreement (Mutual).  Here’s the sample Video Guide that comes with this Auto-Accident Settlement and Release Agreement (One-Sided):

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FYI, I will be appearing on CFRB1010 next week to discuss this new project.  There’s also talks with other local and national media to bring awareness to this fabulous new service – so stay tuned…Here’s the swanky Press Release that was issued today as part our Official Launch of Legal Forms + Video Guides:

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So Professor Fodden COINCIDENTALLY decided to write a blog on Slaw YESTERDAY that discussed a PH.D. thesis from 2007 by Christine Vanda Burns called “Online Legal Services – A Revolution that Failed?“  It’s going to take me a little while to go through this thesis (it’s 729 pages!). But, as Professor Fodden points out in his blog, the big problem is the acquisition and packaging of legal services (i.e. transferring knowledge).  For lawyers, their time can be more lucrative by doing what they’ve always been doing: hourly billings.  But that’s about to change…You see, we have just launched (COINCIDENTALLY, 1 day after Professor Fodden blogged about Professor Burns’ article) a revolutionary new product that will do exactly that: LEGAL FORMS + VIDEO GUIDES.  We have essentially packaged legal knowledge and documents for sale to the masses that can be digestible, interacted with, and which provide effective learning.  All at a fraction of the price a lawyer would charge…check out the promo video:

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It’s coming to the wire.  Which basically means that Dynamic Lawyers is almost ready to usher in a new era of legal services through the launch of Legal Forms + Video Guides.  Lawyer-prepared.  Easy to customize.  Simple to read.  With a ton of free bonuses (guides and updates).  This is going to be a big hit, I’m sure.  We put in a ton of time, resources, and effort to make this available to the public.  This will be the last blog before the official launch (barring any unforeseen catastrophes, most likely: next week)!!!!  Excited?  I am….

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my two other blogs on the topic of “Is My Legal Form Valid and Enforceable”, in this blog I’ll be discussing the various ways in which a party can challenge a legal form based on the process it was entered into.  Typically, a party will make an argument that there wasn’t sufficient consent or the agreement was not entered into freely or voluntarily.  This may be based on threats, special relationships, or an imbalance of power that allows a party to take advantage of the other party.  A party may also claim there was a mistake or misrepresentation which caused it to enter into the agreement.  So without further adieu, let’s get into it…

Duress
DURESS is a legal doctrine that allows a party to challenge an agreement on the basis that they were so seriously coerced by another’s party’s illegitimate exercise of power such that they could not freely consent to entering into the agreement. Examples of duress include threats or acts that are unlawful (e.g. criminal, tortuous, breaches of contract, etc.) or illegitimate (e.g. threatening to refuse to enter into a contract or to terminate a contract lawfully unless…). Basically, if there’s some kind of unlawful or illegitimate pressure that isn’t in the normal course of market forces, then it could amount to duress. Specific examples could include:

• A party threatening another party’s life or limb unless they enter into an agreement;
• A party threatening to sue another party unless they enter into an agreement; and
• A party threatening to call the police on another party unless they enter into an agreement.

Undue Influence
UNDUE INFLUENCE is similar to duress as it is concerned with the adequacy of a party’s consent to enter into the agreement. Unlike DURESS, however, undue influence may exist without violence or threats of violence against a party. Undue influence depends on the RELATIONSHIP between the parties which causes one party to confide in the other and leads the other to take advantage and exert a natural influence over the other. Undue influence can be used to challenge a contract on the basis that a weaker party was dominated by or unduly influenced by the other party. Examples of relationships that could lead to challenging contracts based on undue influence include: doctor-patient, parent-child, trustee-beneficiary, priest-churchgoer, etc. So there’s a special relationship that involves trust, confidence and influence. To get around this type of challenge, a party could try to argue that the other party received full disclosure, had independent legal advice, and had only a minor disadvantage when it came to unequal power.

Unconscionable Bargain
Agreements which amount to UNCONSCIONABLE BARGAINS can be challenged. This doctrine relates to an unfair advantage gained by an unconscionable use of power by a strong party against a weaker party. So there are substantive and procedural elements here. The substance is the contract itself: how fair were its terms? The procedural element has to deal with how it was entered into. The defence of unconscionable bargain may apply to situations where there is no unlawful threat (duress) or domination (undue influence). So to recap: there is an inequality of bargaining power and one party has taken undue advantage of that inequality. That inequality in bargaining power may result from poverty, age, ignorance, emotional vulnerability or mental infirmity of one party. This doctrine is not meant to simply undue bad bargains. It looks at factors such as fairness, relationship between the parties, their respective knowledge and weaknesses, sources of power, conflicts of interest, grossly inadequate consideration in the contract, etc.

Misrepresentation
A MISREPRESENTATION is a material statement which is false and which an innocent party reasonably relies upon to their detriment to enter into the contract. The false statement could have been made fraudulently (i.e. where a party knew it was false, but said it anyways with the intention of having the other party rely upon it as being true), negligently (where a party was careless or reckless in knowing the truth of the statement, but says it anyways), or innocently (a party was innocent of fault in making a misrepresentation). If there has been found to have been a misrepresentation, then the contract can be challenged and rendered invalid and unenforceable (in whole or in part).

So what’s with all the “in whole or in part?” Well, if the contract is not wholly undone or struck down as a result of its defect (and this will depend on how it is challenged and the degree to which that challenge is successful), then parts of it may survive. If you don’t want to leave it up to a judge to make that decision, then be sure to include a SEVERABILITY CLAUSE in your agreement. This clause generally says that it, if part of the contract is found to be invalid and unenforceable, the rest of the contract will still survive and be valid and enforceable.

Mistake
An agreement may be challenged in whole or in part on the basis that there was a mistake. Mistakes get made all the time. Sometimes, only one party makes the mistake (UNILATERAL MISTAKE). Other times, both parties make the same mistake (COMMON MISTAKE). And other times, both parties make mistakes but their mistakes are different (MUTUAL MISTAKE). Interestingly, a contract may actually contemplate that there is a mistake and how it ought to be dealt with. Sometime, the parties claim that there was a radical or fundamental difference between the document they thought they were signing and the document actually signed (in terms of character, contents or otherwise). But the signer cannot raise that defence if they failed to use reasonable care in signing the document.

So, overall, there are many ways that a contract can be challenged and struck down – in whole or in part. Specific examples include (but are not limited to):

• Vague or missing terms
• Lack of Consideration
• Duress
• Undue Influence
• Unconscionable Bargain
• Misrepresentation
• Mistake

Note, that there are other ways in which a contract can be challenged – for example pursuant to the doctrines of promissory estoppel (i.e. where a party makes a clear and unequivocal promise or representation to another party that it will not insist on its strict legal rights under the contract, and the other party alters its position in reliance on the promise or representation, the first party may be estopped from asserting its strict legal rights) or frustration (i.e. something outside the parties’ control makes it impossible for one or all of them to carry out their obligations in the agreement).

If you have any concerns over the validity and enforceability of your legal form – in whole or in part – based on the principles of contract law outlined above or otherwise, you should consult with a lawyer (e.g. by making a post on Dynamic Lawyers). Remember: an ounce of legal prevention can save you a pound of pain later on.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, negotiating, or resolving a dispute concerning an agreement, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to your agreement.

As a follow up to my previous blog introducing the topic “Is My Legal Form Valid and Enforceable?”, in this blog I’ll be talking about 3 big SUBSTANTIVE issues which could allow a party to challenge an agreement (in whole or in part) and have it struck down by a court.  Those 3 substantive issues have to deal with the actual terms and conditions of the agreement and are: (1) clear, complete, and complete terms, (2) consideration, and (3) against public policy.  So let’s go…

Clear, Complete, and Certain Terms
First, the terms that are in the contract itself must be clear, complete, and certain enough to be enforceable. Long-winded, incomplete, and vague terms can be challenged and perhaps rendered invalid and unenforceable by a court. So if you’re adding provisions of your own to a legal form, always ask yourself: “Is this term or condition clear enough for a reasonable person to understand?” and “Are important terms – such as price, timeline, consequences, etc. – missing”? Worth noting is that an agreement to agree about some critical part of the contract at a future time could also be challenged and struck down by a court. If significant terms are left out of a contract and the parties simply agree to come up with an agreement about them later, then the entire contract may be challenged! An agreement to agree is generally not enforceable!

Consideration
For any contract to be valid and enforceable, there must be an element of what is called “CONSIDERATION”. Consideration means that there has been a real and fundamental exchange between the parties. Consideration is generally defined as an act, forbearance (i.e. not doing something you’re legally entitled to do), or promise by the promisee (i.e. the party receiving the promise) undertaken IN EXCHANGE for the promise. Consideration requires that some benefit flow from the promisor (i.e. the party making the promise) or that there is some detriment to the promisee in exchange for the promise. Consideration must move from the promisee. The party seeking to enforce the promise must show consideration. Motive or desire to make a promise does not constitute good consideration. If a party is already under a pre-existing legal duty to do or not do something, that may be challenged as not being adequate consideration. Similarly, if a party is under a public duty to do something, then that is generally not considered to be adequate consideration. Finally, a pre-existing duty owed by one party to the other may not be adequate consideration unless something new of value is being provided. To wrap your head around it, just think about this example: if I promise to give you $1,000 if you like me more, there is NO consideration. Why? Because liking me more is not something that is recognized as having monetary value by our judicial system. It is not a promise that that can be enforced. So it’s lacking consideration and is not valid. Get it? Here’s another example of an agreement WITH consideration: in exchange for paying you $1,000, I promise not to sue you for the damage you did to my house. This time, I’m promising not to make a claim against you, even though I could. I’m giving up something of benefit in exchange for something valuable from you (i.e. money). There’s a real and fundamental exchange here so this agreement can be valid and enforceable.

Contrary to Public Policy
Contracts – in whole or in part – that are against public policy can be challenged and rendered invalid and unenforceable. Contrary to public policy means that there is some injury to public goods or morals (e.g. violating a statute, obstructing the administration of justice, etc.). There is no definitive list of what constitutes public policy as this is a legal question left for judges to determine. That said, example of contracts that may be contrary to public policy include:

• A party agrees to commit a crime;
• A party agrees to give false testimony; or
• A party agrees to not publish a story in a newspaper that ought to be published.

Overall, while there are MANY OTHER WAYS to challenge the actual SUBSTANCE of a contract, some of the more common ways are noted above. It is always recommended to speak with a lawyer (e.g. make a post on Dynamic Lawyers) if you have any questions about the substance of your legal form – particularly if you’re modifying the template yourself! Now onto the PROCESS of entering into the contract in the next blog…

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