Frequently Asked Questions
The Wallenstein Law Group
Contract Creation and Enforcement
Q. Do verbal agreements count?
Verbal agreements can be legally enforceable. However, proving the specific terms of an unwritten agreement can be extremely difficult and often leads to disputes. In addition, the common law “statute of frauds” prevents certain verbal agreements (e.g., real estate sales or loan agreements over a certain dollar amount) from being unenforceable. (Many jurisdictions have incorporated this concept into their respective regulations.) Written contracts reduce risks, clarify expectations, and protect interests.
Q. What makes a contract legally valid?
Courts typically consider a contract to be valid when it contains:
1) a specific offer,
2) clear acceptance of that offer,
3) mutual consideration (i.e., each party gives and receives something of value),
4) clear terms,
5) capacity of both parties, and
6) no illegal purpose.
However, even if your contract contains these elements, its terms may still be unenforceable if they are vague, unconscionable, or violate public policy. The use of informed legal counsel can minimize these risks.
Q. Can I push back on a non-compete clause?
Yes. Non-compete clauses are generally held to be reasonable in scope, geography, and duration. Many states significantly limit or even completely prohibit them. Even where allowed, companies often overreach. We write more about this HERE.
Q. What should be included in a contract?
Conceptually, a strong contract will clearly outline each party’s responsibility, timelines and deliverables, payment terms, confidentiality and IP ownership, termination rights, liability, indemnity, dispute-resolution terms, governing law and jurisdiction, and any industry-specific requirements. The goal is to address any potential risks (so that all parties agree as to what should happen) before they arise. We write about why all of this “boilerplate” is necessary – and where the term comes from! – HERE and HERE.
Q. Can I write my own contract?
Sure.
You can also go rock climbing without a safety harness. But…should you?
Good lawyers are trained to know standard practice, nuance, and the law; they draft contracts that avoid ambiguity and protect interests. See how lawyers beat AI here.
Disclaimer: The responses made available by The Wallenstein Law Group, P.C. are for informational purposes only, with no analysis of a particular matter, and are not to be considered legal advice. Your review of this preliminary information does not form or constitute an attorney-client relationship. (If you would like to rely on legal advice under privilege, please give us a call!) Please do not rely on this information when making legal decisions; instead, speak with an attorney.
Performance and Breach
Q. What if the other party breaches — can I cancel immediately?
When the other party breaches your contract, your options depend on the severity of the breach, the terms of the contract, and applicable law. Under the terms of your contract, a “material” breach may allow you to stop performance or terminate the contract immediately; a minor breach often may not justify stopping performance or payment. You may have formal notice provisions and the other side may have an opportunity to “cure.” For multiple potential reasons, you may also not wish to terminate. The best path forward is a case-by-case determination based on informed legal advice.
Q. How can I terminate a contract?
Most contracts specify how they are terminated. Common termination options include for cause (i.e., due to the fault of the other party), for convenience (i.e., at will), or at the end of a defined term. Applicable laws and regulations may also specify when a contract becomes void or unenforceable. (This is one reason why lawyers are valuable.)
Q. What if external events prevent performance?
Unexpected events may trigger “force majeure” provisions, either in contract or at law; they may also trigger common law defenses of “impossibility” or “frustration of purpose”. If these doctrines apply, a party may be excused from performance. The outcome will depend heavily on contract terms, applicable law, and the nature of the event. Read more about this concept HERE and HERE.
Disclaimer: The responses made available by The Wallenstein Law Group, P.C. are for informational purposes only, with no analysis of a particular matter, and are not to be considered legal advice. Your review of this preliminary information does not form or constitute an attorney-client relationship. (If you would like to rely on legal advice under privilege, please give us a call!) Please do not rely on this information when making legal decisions; instead, speak with an attorney.
Risk Mitigation and Disputes
Q. Can the contract language be changed?
If it’s legal, (almost) anything is (almost always) negotiable.
Of course, many risks can be reduced or eliminated through revisions before signing. (This is one reason why lawyers are valuable.) After signing, most contracts prohibit unilateral modifications, but all contracts can be modified or amended if the parties agree to the change.
Q. What are common contractual pitfalls?
Every agreement carries unique risks depending on sector, parties, and scope. Common problem areas include unclear scope of work, unclear payment terms, unlimited liability, IP ownership issues, confidentiality gaps, one-sided termination clauses, and confusing regulatory and compliance obligations. Note also that applicable laws and regulations may impose additional requirements or prohibit otherwise-valid contract terms. (These are reasons why informed lawyers are valuable.)
Disclaimer: The responses made available by The Wallenstein Law Group, P.C. are for informational purposes only, with no analysis of a particular matter, and are not to be considered legal advice. Your review of this preliminary information does not form or constitute an attorney-client relationship. (If you would like to rely on legal advice under privilege, please give us a call!) Please do not rely on this information when making legal decisions; instead, speak with an attorney.
Contract Management
Q. Are my older contracts still valid?
It depends on the terms of the agreement. Many agreements automatically renew or remain enforceable until properly terminated. Others expire after a defined term or require renewal to remain effective. Even after expiry, however, some contracts can be deemed to continue due to “course of conduct” between the parties. Depending on your contractual position, use informed counsel to ensure obligations remain enforceable or properly expire.
Q. Is the person I'm dealing with authorized to sign?
Not always! A contract may be deemed invalid or unenforceable if it is signed by someone without proper authority. On the other hand, a contract signed by an unauthorized person with “apparent authority” may be deemed valid and enforceable if the other party had no reason to suspect otherwise. An informed lawyer will include protective language and affirmations to avoid this ambiguity.
Q. What clauses are negotiable?
Nearly every contract clause is negotiable. Not every contract clause is enforceable at law. (In other words, applicable laws may prevent the enforcement of your drafted clause.) To avoid this problem, an informed lawyer will draft clauses in accordance with applicable law and standard practice.
Common negotiable provisions include payment terms, scope of work, deliverables, termination rights, liability and indemnity limitations, confidentiality and data protections, and non-compete or non-solicitation terms. However, every contract is bespoke, i.e., tailored to the specific matter and perspectives of the parties. (This is why contract templates do not always optimally represent your interests.)
Good lawyers are trained to know standard practice, nuance, and the law; they draft contracts that avoid ambiguity and protect interests. Read about why we recommend avoiding using templates as a “Mad Libs” exercise HERE.
Disclaimer: The responses made available by The Wallenstein Law Group, P.C. are for informational purposes only, with no analysis of a particular matter, and are not to be considered legal advice. Your review of this preliminary information does not form or constitute an attorney-client relationship. (If you would like to rely on legal advice under privilege, please give us a call!) Please do not rely on this information when making legal decisions; instead, speak with an attorney.
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Disclaimer: The responses made available by The Wallenstein Law Group, P.C. are for informational purposes only, with no analysis of a particular matter, and are not to be considered legal advice. Your review of this preliminary information does not form or constitute an attorney-client relationship. (If you would like to rely on legal advice under privilege, please give us a call!) Please do not rely on this information when making legal decisions; instead, speak with an attorney.
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