Why to Memorialize Your Agreement in Writing

People can form binding legal contracts both orally and in writing. Since talking through an agreement can take much less time and effort than writing out a formal contract, it may seem that oral agreements are the easiest choice to get business done. Unfortunately, making an oral contract has many pitfalls not apparent at first but very clear if you get into a dispute later on.

Avoid arguments about the agreement’s terms

The main problem with using an oral agreement is that there is no permanent documentation of the agreement’s terms. If you negotiate a price or amount on the telephone but never write down your agreement, it may be difficult to prove what was discussed or agreed if a dispute arises. A written agreement signed by the parties which sets out the agreed terms will provide better evidence of the contract terms than the often conflicting statements of the parties as to what was agreed

Insert legal protections in the agreement

Writing down an agreement allows you to insert legal protections into the terms of the agreement. For example, you can specify the method of settling any disputes that arise. Contractual terms can require the parties to give adequate notice of any actions taken to enforce the terms of the agreement. They may also explicitly exclude or specifically include certain items in the scope of the agreement, such as legal descriptions of land or types of products that will not be sold. Exhibits such as documents or photographs may be attached to a written agreement to demonstrate an important aspect of the agreement. In short, writing everything down allows the parties to protect themselves in case of a dispute.

Write down everything in one place

Preparing a written agreement gives you a chance to write everything down in one place. If you rely on a series of emails, telephone calls, or letters back and forth, some of the detail could get lost along the way. Later, that correspondence could contradict terms of the written agreement if there is a dispute about the meaning of the contract.

If there is a written agreement however a special clause can be inserted which states that the contract is the final, full agreement of the parties on a subject and that the agreement supersedes any previous agreements, whether oral or written, between the parties to the contract. This type of clause tells a court that you signed the contract while aware that any prior negotiations were not part of the final agreement.

To find out more about contract drafting and interpretation, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

 

The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website.  This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.

Contesting a Will in The Bahamas

Coming to terms with the death of a relative becomes more difficult if you need to contest your loved one’s will. Contested probate matters can be emotionally taxing and time consuming for families, so seek out legal advice regarding wills from an attorney.

A will may be contested for different reasons related to the will’s contents or its creation. Some of the most common reasons for contesting a will include:

  • The mental incapacity of the testator to make a will
  • Improper signing (execution) of the will
  • Improper drafting of the will
  • Discovery of another will created after the one at issue
  • Dependents’ claims to property disposed of by the will
  • Disputed ownership of property disposed of by the will

A lawsuit that challenges the contents of a will or its effect is called a “contentious probate action”. Like other civil lawsuits, the person mounting the will challenge is called a plaintiff and anyone opposing the contest is a defendant. Also like in a civil lawsuit, the plaintiff must serve a statement of claim on all defendants setting forth the grounds for the dispute. The plaintiff may identify multiple grounds for contesting the will, such as the examples above.

During contentious probate proceedings, the court tries to determine whether the plaintiff can prove the validity of the grounds for dispute listed in the statement of claim. The plaintiff will have the opportunity to present evidence that, for example, the will was not signed in the presence of two witnesses as required under the Wills Act.

If the court agrees that one or more grounds for dispute is valid and proven, it will make an order regarding disposition of the estate consistent with the plaintiff’s claims. For example, if the will is not correctly executed because it was not signed in the presence of two witnesses, the court may find that the will is not valid. In that case, and barring the discovery of any other valid will, the deceased’s property would pass to his or her heirs according to the rules of intestacy. If another valid will exists, the property may pass according to that will’s terms. Much depends, however, on the circumstances of a particular will contest and the specific findings by the court.

Contentious probate actions take time, money, and energy that grieving relatives cannot spare, so anyone considering challenging a will should contact an attorney for advice.

To find out more about contesting a will in The Bahamas, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

 

The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website.  This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.

Rescinding a Commercial Contract in The Bahamas

The concept of rescinding a commercial contract arises in business disputes when one party misled another party into signing an agreement. Rescission refers to the remedy available through the court to the wronged party who proves it was misled.

A contract is formed when one party makes an offer to do something, the other party accepts, and there is consideration for the agreement. When, however, one of the parties makes a material misrepresentation about the subject of the contract, the other party may agree to the contract without knowing the truth.

Due to the misrepresentation, the second party may seek rescission of the contract by an order of the court. Rescission means that the contract is declared null and void because of the misrepresentation. In effect, the rescission remedy gives legal recognition to the fact that the misled party might never have entered into the contract if it had known the truth.

Any misrepresentation leading to rescission must be material to the contract. The mere non-disclosure of relevant information without any duty to disclose that information likely will not convince a court to order rescission. Rather, you need to show that the other party misstated relevant information to you that induced you to sign the contract, or that the other party said nothing when it could have corrected incorrect information you received.

Companies that enter into commercial contracts may obtain rescission as a remedy for several other reasons, including both parties’ mistake as to a material fact, a breach of warranty, or a material concealment. In order for the court to order rescission all of the events complained of must occur before the parties sign the contract, such as during the negotiations leading up to a written agreement.

Note that you cannot seek rescission of a contract for actions the parties take during performance of an executed contract. Those actions may constitute a breach of contract or may trigger a provision in the contract that requires termination. In either case, the remedy would be an award of damages and potentially, a discharge or termination of the contract. Any rights the parties may have received prior to discharge or termination will continue. In contrast, rescission does not result in rights continuing – the result is that the parties are in the same positions they would have been had the contract never been signed.

To find out more about commercial contract interpretation, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

 

The hiring of an attorney is an important decision that should not be based solely upon the information contained in this website.  This website is designed for general information purposes only and the information provided should not be construed to be formal legal advice nor the formation of an attorney/client relationship.

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