Law Enforcement and Legal Use of Force

The line between legal and illegal use of force can be blurred in cases of violent crime. There is a distinct line between deadly force and legal force, but how can one be sure that force is excessive or necessary? Because of the complexity of this question, there are very thorough regulations and codes that work to define the legality of force and in which situations it is legal or illegal. These codes also regulate the use of force by law enforcement officers. Because of their responsibility to protect our communities, they are governed by specific regulations regarding force.

In some states, laws protect law enforcement officers right to use force if a person is resisting arrest or threatening to use force to deter an arrest. Not only can a law enforcement officer use legal force in these situations, but anyone they request to assist them in a moment can also be protected using the same guidelines as the law officer.

Law enforcement can use force to subdue a person resisting arrest in specific situations. Force is legal in self-defense if a person is threatening their health while resisting arrest. They may also legally use reasonable force to retake an escaped felon. These two reasons are often clearly defined and understood.

Force can also be used in overtaking a fleeing criminal, and even deadly force can be used in some states in these circumstances. If a police officer or other law enforcement officer has reason to believe that a fleeing felon is a harm to other people around them or has committed a crime in which they seriously injured another person, deadly force may be an acceptable means of ensuring their arrest.

Use of force can be a complex and situational action that often is contended by one of the parties involved in the crime or attempted arrest.

Application of Liens for Code Enforcement Violations

County and Municipal governments, while carrying out its obligation to provide code enforcement services to address violations of codes and ordinances, will often apply fines for cases where compliance is not achieved in a timely manner. Penalties are typically applied after a hearing has been held and a time-frame to achieve compliance is provided to a violator. The majority of violations are usually corrected within the time-frame provided by the code enforcement officer however, since a proportion of property owners fail to bring their properties into compliance, these fines can quickly add up. If the county or municipality was required to perform any abatement services, such as mowing, trash removal or demolition, those costs also become outstanding bills that are owed by the property owner. When the fines remain unpaid, this may result in the filing of liens for unpaid fines or bills.

Simple primer on code enforcement case procedure

Typically, the code enforcement process begins after an investigation has been performed and a notice that one or more violations exist, is provided to a violator, which is usually the property owner. This notification includes information which is required by law and basically serves to provide a description of the violations which may exist on a particular property or location, steps needed to obtain compliance, and a time-frame for which the violations must be corrected. If an extension of time is not granted and the violations are not corrected, the violations may be referred to an administrative hearing conducted by a Code Enforcement Board or Special Magistrate Judge for adjudication to determine if violations are, in fact, valid and to provide a violator or respondent with due process rights to a hearing.

After a hearing is held and violations are upheld, an order providing an additional time-frame for obtaining compliance is provided with a penalty amount or fine for each day that the violations are not corrected. If the violations are corrected prior to this date, then no fine may accrue. However, if the violations are not corrected by this time-frame, then a daily fine begins until the property is brought into compliance. Once compliance is acknowledged by the code enforcement officer then the daily fine stops and this amount becomes a fine which is owed to the County or Municipality. If compliance is not achieved, the fine continues to accrue. Usually, another hearing to determine if violations were not corrected in a timely manner and to impose the penalty is scheduled and notification of the hearing is provided to the violator. If the fine is upheld, then an order establishing a fine is provided to the violator. This fine may become a lien if the County or Municipality so chooses.

In the State of Florida, Florida Statute Section 162.09 (3) provides that a certified copy of an order by a Code Enforcement Board or a Special Magistrate imposing a fine may be recorded in the public records which results in a lien placed against the land on which the violation exists and upon any other real or personal property owned by the violator.

Purpose of the code enforcement penalty versus a lien

In the simplest of terms, a lien is a legal claim on someone’s property as security for a debt or an amount owed for services provided for which payment was not received. It basically serves to detain the property of someone until that claim is satisfied. The amount of the penalty that is imposed by a code enforcement board or special magistrate occurs after reviewing three important factors; one, the gravity of the violation; two, any actions taken by the violator to correct the violation; and three, any previous violations committed by the violator. Once the fine is recorded, it now is known as a lien. The certified copy of the order will usually state the amount of the fine or a daily penalty and may include a provision for accrued interest until satisfied. After 3 months from the filing of a lien which remains unpaid, the enforcement board may authorize the local governing body attorney to foreclose or to sue to recover a money judgment for the amount plus accrued interest. This provision, however, does not apply on real property or personal property which is a homestead under s. 4, Art. X of the Florida State Constitution.

The state statute describes the fine and the recording of it separately, as they are not one in the same. The penalty that is imposed, due to noncompliance with an order, continues to accrue until compliance is met and therefore the fine no longer continues to run or if suit has been filed and a judgment is rendered. However, the lien that results from a fine that was imposed, rests with the local governing body as it is an amount that is owed. According to Florida Statute Section 162.10, a code enforcement lien is valid for 20 years from the date of recording.

In 1986, the Florida Attorney General provided further clarification as to the mechanics of the code enforcement lien by answering a question posed by the City Attorney for the City of Tallahassee in Advisory Legal Opinion AGO 86-10. The review concluded that the law does not allow for the continuation of a fine against property in noncompliance for code violations following the entering of a lien against a property and that the original lien may not be amended for accumulation of a fine after the lien is filed or recorded. This is also true of a repeat violation of a previous order and a hearing and a new order imposing a penalty for a separate and distinct lien is required. Further clarification was also provided in a similar opinion which acknowledged that a lien must be extinguished if it is paid, without respect to noncompliance.

Conclusion

The lien is an instrument which serves to force payment of the fine which was ordered by an administrative board or special magistrate after failure to comply with an order of the board or magistrate. The potential for receiving a fine is the principal deterrent to remaining in violation of local codes and ordinances. This makes sense because the purpose of the lien is to obtain payment for a fine that is owed, not as an incentive for bringing a property into compliance after it is filed. The purpose of code enforcement is to ensure compliance with codes and ordinances, not to impose penalties. Adequate time and mechanisms to obtain additional time to bring properties into compliance are required by law. It would however, be in the best interest of a violator to bring the property into compliance or find some other means of remedies for the property violations, in order to prevent receiving additional violations and subsequent penalties. In most cases, if property owners work closely with code enforcement personnel, most cases do not result in liens being placed for minor violations because compliance is the ultimate goal.

This article was designed to provide accurate and authoritative information in regard to the subject matter covered. It was written with the understanding that the author is not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.

Letter of Intent (LOI) in Crude Oil Deals – The Legal Traps and Pitfalls of LOI for Crude Buyers

Nowadays, to hear many of the oil sellers and operators, particularly their brokers and agents, who are involved in the international open market crude selling, describe it, this document – called the “Letter of Intent” or LOI, for short – is not only an essential document for doing crude oil business, but one which every credible person or company engaged in crude buying should always use in initiating a purchase. To many of these operators, not only should crude oil buyers use the LOI to initiate their buying orders, but initiating the purchase order in that manner, they say, has always been the usual way by which credible buyers initiate their purchasing projects, as doing it that way indicates, they claim, that a buyer is “serious” and genuinely committed to making a purchase.

THE SELLERS’ RATIONALE FOR DEMANDING THE LOI

This position expressed by one representative of a seller, a Swedish-based broker, in a recent exchange with this writer’s office regarding the seller’s offer wherein the prospective buyer’s mandate resisted the broker’s insistence that the prospective buyer must first sign an LOI, pretty much sums up the traditional rationale offered by sellers and/or their agents for having an LOI:

“Buyer who is serious, ready and able to purchase [crude oil], will sign [an] LOI and all the necessary documents that protect the rights of the Brokers and proceed. There is nothing to lose in signing those documents. This is how it is usually done and this is how it should be.”

In sum, the rationale underlying the Seller’s demand for LOI, can essentially be summed up as follows:

1) That giving an LOI to a seller by a prospective buyer, is an indication that the buyer is “serious” and willing to purchase;
2) That use of the LOI is the usual way of initiating a purchasing proposal by a buyer, and is the right and proper way to go; and
3) That there is nothing for anyone in the deal to lose by a prospective buyer signing an LOI.

HOW VALID, OR OTHERWISE, ARE THESE USUAL RATIONALE BY SELLERS OR THEIR AGENTS?

Ironically, while oil sellers and their agents frequently demand that prospective “serious” buyers involved in crude oil transactions should first offer an LOI, the buyers, on the other hand, are not generally enamored of that idea. Especially when, in effect, what is being asked of them is to provide the LOI upfront to a little-known Internet-generated seller about whom they lack any familiarity with or whose bona fides as sellers they know next to nothing about – other than, perhaps, that they (the buyers) had had some initial communication with the “seller” via an Internet contact. In deed, to this writer’s knowledge, crude buyers, particularly the more established and prominent ones, would very rarely offer an LOI upfront to any sellers to initiate a purchase. And when, especially, the supposed “seller” that’s involved is one that is a virtual unknown to the buyer, or one that is merely an Internet-generated seller about whose bona fides and credentials the buyer knows practically next to nothing, one can be almost absolutely certain that the chances of a crude buyer of substance signing over an LOI to such a seller, is practically next to zero.

Contrary to the sellers’ and their super sales-conscious agents’ familiar claim that “There is nothing to lose in signing those documents,” quite the complete opposite is true – namely, a great deal, in fact, could potentially be lost particularly by the buyer by signing an LOI to a supposed seller. Why? In a word, this is because the LOI is actually fraught with many incalculable legal flaws, traps and pitfalls, much of which could often be prohibitively costly for the buyer, according to legal authorities and contract law experts. (See below for more on this)

In fact, some experts have called the LOI a document whose use is primarily advocated or promoted only by amateurs and marginal dealers or “joker-broker” types in the crude trade business, especially the overzealous sellers’ agents and brokers in a desperate hurry to land some buyers. Mr. Ziad K. Abdelnour, President & CEO of Blackhawk Partners, Inc, a New York-based advisory firm to traders and suppliers of metals, minerals and crude oil commodities, calls the LOI document something that is primarily “used out on the Internet by inexperienced traders,” and by “inexperienced ‘intermediary seller’ who is claiming to be the supplier.”

The point is that the often-heard notion and claims by some sellers or their overzealous agents and brokers that the use of the LOI to initiate a purchasing proposal by a buyer “is how it is usually done and this is how it should be,” may be applicable and prudent only in the minds, the imagination, and hopes or dreams of those sellers, especially the more marginal ones and their brokers and agents who operate on the fringes largely on the Internet. It is NOT a view that is shared by the broad spectrum of credible buyers, more especially when the “sellers” involved are largely unknown and obscure operators.

THE REASONS WHY BUYERS & EXPERTS SHUN & DISAPPROVE OF THE USE OF LOI

They include the following:

1. LOI is used as manipulation tool at the hands of unscrupulous sellers & agents.

Often times, obscure or scam-oriented persons who claim to be crude Sellers, or represent themselves as sellers’ agents, mandates or brokers largely by an Internet contact or communication, employ the LOI merely as a tool to quickly “corner and box in” a prospective buyer to a purchase deal, before the prospective buyer may demand that they provide their business profile or show him something tangible to demonstrate that they are truly legitimate sellers. Such sellers would persistently demand that the prospective buyers hurry and issue them an LOI right upfront purportedly as proof that they are “serious” about making the purchase – that is, before the buyer may probably start raising some probing questions about them or their credentials as legitimate sellers.

Many a time, especially in a case involving a supposed seller who is either a fake seller or does not actually have the supposed crude in hand yet, or, an unscrupulous aspiring seller’s agent or broker who actually has not acquired a crude supplier (seller) yet, buyers may issue an LOI only to find out that there is no seller on the other end. This happens a lot in situations where you have an hungry agent or facilitator who is still struggling to get a real supplier, and by extracting this LOI from an unsuspecting buyer, this facilitator can commit the buyer only for him then to start hustling to find a seller or supplier.

2. LOI is a Legally Worthless Document That Means Virtually Nothing

As a practical matter, in legal terms, the Letter of Intent is a worthless and meaningless document. The LOI is a badly flawed legal document. This is because the document is, as one experienced contract law expert put it, “an agreement to agree which is non-binding and non-enforceable as a contract.”

Ziad K. Abdelnour, President & CEO Blackhawk Partners, Inc, the New York-based advisory firm on such matters, puts it this way: “Giving a Letter of Intent only means ‘Yes I’m intent to buy the goods but I can change my mind anytime.’ A letter of Intent is not a binding contract. [Hence] The Letter of Intent is a total waste of time on a worthless piece of paper.”

So, if a letter or document that nominally or presumably conveys the signer’s “intent” or intention to buy, is essentially meaningless and worthless in legal terms, and is not binding on the signer or anyone, and CANNOT be enforced on him, then why would a respectable crude buyer, in the first place, want to waste its precious time and resources (or that of its expensive lawyers) to engage in such a fruitless exercise for the benefit of a seller? Especially for an unknown or obscure seller?

3. LOI is fraught with many legal booby traps & pitfalls especially for the buyer.

But probably the most damning reason why credible crude buyers would have little or no use for LOI in their buying dealings, is that using the LOI is fraught with many incalculable legal traps and pitfalls much of which could atimes be very costly for, and to the detriment of, the buyer, according to legal authorities and contract law experts.

A fundamental flaw of the LOI, lies in what Vasilios J. Kalogredis, a Wayne, Pennsylvania attorney, calls “the uncertainty and potential risk of any such undertaking.” Kalogredisis, a business contract law expert, explains it this way:

“Letters of intent are often touted as a ‘non-legally binding’ way to get the parties to set forth in writing what the undertaking is among them relative to a transaction. Too often, parties will sign such a document, feeling that they have little or nothing to lose by doing so… [True, that’s] one of the attractive elements of the letter of intent [its purported non-binding nature]. However, courts have found letters of intent to create binding obligations, even if the letter itself does not explicitly state that it is binding… certain provisions within the document may indeed [still] have legal effect.”

Kalogredis calls that basic fact that a document generally viewed by many as a casual and non-binding document, could atimes still become binding under certain unpredictable circumstances, “one of the traps in a letter of intent,” and adds:

“My advice [to parties contemplating having an LOI] is to proceed with caution before signing any such document. As a general rule (and there are exceptions), I urge the parties to go right to the final documents and “dot all of the I’s and cross all of the T’s,” rather than go through this interim step of a letter of intent, which has many potential traps.”

Another contract law attorney, Ivan Hoffman of California, makes essentially the same point:

“Parties to a transaction sometimes intentionally create a letter of intent as an expression of what they intend to agree upon should certain circumstances arise… [whatever happens], the document will not be binding and thus not enforceable until those circumstances arise. Thus, the letter of intent is essentially a legally worthless document. It is not clear to me the reason any party would ever bother to create such a document and yet I have seen it used on many occasions. If parties to a transaction intend to bind each other, then they should create a binding contract, not a letter of intent. If the parties to a transaction do not intend to bind each other, then why bother creating a document that is not binding?

However, sometimes one of the parties prepares a document believing it to be a valid and enforceable agreement only to find, after expensive litigation, that it was not a binding agreement at all but merely a non-binding, non-enforceable agreement to agree, letter of intent.”

4. LOI as a Source or Promoter of Undue Litigation

Aside from the legal problem of the ambiguity and uncertainty inherent in LOI, there is yet another major problem inherent in the document, from a legal standpoint. Namely, precisely because the LOI is basically ambiguous and non-definitive by nature, the document often easily lends itself to different interpretations and understandings at the hands of different parties (or even the courts), and thus lends itself, in turn, to being a fertile source for undue litigation and legal contests for those involved with the use of that document in their transactions.

Lawyers at the Coollawyer.com, explain the legal “paradox” inherent in the LOI, wherein the signing of an LOI, is often prone, not to bringing about less litigation, but more litigation, and put it this way:

“Letters of Intent, legally, are the worst of all worlds. Writing a letter of intent is not to be taken lightly. In law, you either have a contract or you don’t. LOI’s are the legal equivalent of “almost pregnant.” Letters of Intent emphatically state that. They state that they are not formal agreements, and then often proceed to set forth agreed terms of the proposed transaction. Given this paradox, if the deal goes sour, one party can argue [in court] that those agreed-upon points were, in fact, agreed upon – or, in fact, a binding contract. And, in some cases, furthermore, that the party relied on the LOI and has monetary damages based on such reliance.”

The lawyers add that: “This is the legal problem with a Letter of Intent – you can’t legally state you agree to something and then state that you don’t in the same document.”

Famous Case of a Letter of Intent Gone Bad: Court Case of GETTY OIL vs. PENNZOIL

A famous example often cited by legal scholars, was a case involving the Getty Oil and Pennzoil in very early 1984. The parties had signed a “Memorandum of Agreement” – viewed by the parties at the time as a Letter of Intent – for a complex investment and stock transaction, whereby Pennzoil would purchase Getty Oil stock, and set forth general terms of the investment that had been reached in conversations, and also stipulated that the Memorandum was subject to the approval of the Board of Getty Oil. The Board of Getty Oil sooner approved the transaction and both parties announced on January 4, 1984 in a press release, an “agreement in principle” to the terms of the Memorandum. The final agreements for the merging of Texaco and Getty Oil were signed by the parties on January 6 – 8.

However, during the same period, on January 6, another oil company, Texaco, came into the picture as it publicly announced that Texaco and Getty Oil would merge. Pennzoil protested the proposed merger, and Getty Oil filed a law suit for the court to issue a declaratory judgment that it was not bound by any contract it had with Pennzoil.

The long and short of the story, is that the court, after scrutinizing not only the Memorandum, but also the wordings of the press releases and other documents that Getty Oil and Pennzoil had issued over the course of their dealings, found Getty Oil to be “in breach” of the Memorandum of Agreement – the document the parties had viewed as a letter of intent. Thus, a document (the letter of intent) that the parties had started out viewing as non-binding and unenforceable, had changed from being that, to being a final agreement! Pennzoil, on the other hand, ended up with $10.6 billion (later settled for $3 billion) from Texaco for interfering in its deal with Getty Oil.

Moral of the story? If you’re ever contemplating using a Letter of Intent in a business transaction, you had better watched out, it may not be as simple a matter as you might think. You better be very cautious, for it could result in unforeseen and unpredictable consequences!

SUMMARY

Put very simply, as a legal or even business document, it’s hard to image any document that could be as beset with so many near-crippling legal flaws, traps and pitfalls for its signer, as the LOI. Consequently, it comes as no surprise that in the REAL world of international buying and selling of crude oil, while the crude sellers and their army of sales-obsessed aggressive brokers and agents may generally be infatuated with the idea of having the LOI document widely and routinely used by prospective crude buyers to initiate their purchasing offers, nothing, on the other hand, could be more disliked, more unacceptable or unwanted by most crude buyers, particularly the more credible and substantive lot. What is more, on top of everything else of decisively negative nature about this document, the LOI is a document adjudged by virtually every legal expert in the field as a document that is legally meaningless, worthless, unenforceable and non-binding both on the signatory parties or on anyone, but yet has the potential to bring forth immense and unanticipated legal complications and problems for the signer(s).

To conclude, there’s perhaps no more apt way to conclude this piece, than to quote this very fitting statement by contract law attorney, Ivan Hoffman, of California: “[Given that] the letter of intent is essentially a legally worthless document [but yet one that could potentially cause many serious legal problems for the signer]. It is not clear to me the reason any party would ever bother to create such a document and yet I have seen it used on many occasions.”

FOR A FOLLOW UP

YOU WANT TO FOLLOW UP ON FINDING CRUDE OUR SELLERS THAT DO NOT DEMAND LOI? OR, AS A CRUDE SELLER, TO FIND OUT HOW YOU CAN STRUCTURE YOUR DEAL FOR A NON-LOI OFFER? Please see the instructional information in the author’s resource box below

Author Benjamin O. Anosike, Ph.D. An acclaimed author and a leading expert on international oil trading procedures, Anosike’s latest book is titled, “The Only Way the Commodities Intermediary Can Close a Petroleum Deal Today,” billed as the most detailed, comprehensive, authoritative step-by-step guide ever written and available today for using the correct and most appropriate trading rules and procedures suited for the modern Internet era to find authentic, scam-free petroleum suppliers and opportunities. FOR MORE ON THIS BOOK, VISIT: http://www.ReliableOilDealsConsultancy.com

He is a Crude Oil Buyers’ Mandate for several giant U.S. and European crude oil and petroleum products buying houses and refineries, and a Consultant, as well, to private investors, entrepreneurs and corporations on how to obtain genuine crude allocation and license with the Nigerian authorities to become an authorized seller of Nigerian crude oil. He has been severally dubbed the “unofficial anti-scam czar” and the “conscience of the business” in the modern Internet petroleum trading market.

Educated and resident in the United States, Anosike holds several advanced degrees, and a Ph.D. degree in jurisprudence.

Did I Enter Into an Enforceable Contract?

The legal definition of a contract is “a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Restatement, Second of Contracts § 1.

But what does that mean to the average businessperson? The legal definition can be interpreted as overly broad, turning any promise a person makes into a binding contract, or it can be interpreted narrowly, confining contracts only to limited situations. When determining whether a contract has been formed, there first has to be an offer.

Every contract begins with an offer. The offer comes from a person named the promisor, and it is addressed to the promisee. The legal definition of an offer is the promisor’s “manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his or her assent is invited and will conclude it.” Id. § 24. Basically, what must be present in an offer is (1) a clear invitation to the promisee to enter into a bargain; (2) the promisee has the ultimate decision to accept or reject the promisor’s offer; and (3) the promisee’s decision will end negotiations and leave the parties either with a contract or without contract. Courts do typically not interpret advertisements or solicitations as an offer, but there are limited exceptions.

The next step in contract formation is the promisee’s acceptance of the promisor’s offer. The legal definition of acceptance is the promisee’s “manifestation of assent to the terms thereof in a manner invited or required by the offer.” Id. § 50. This may seem straightforward, but determining if the promisee has accepted a promisor’s offer is often a point of controversy. In our world of ever changing technology, it is essential to determine whether a reply to an email will constitute acceptance, or if an original signature from the promisee is required. Typically, the promisee can accept the offer using any medium reasonable in the circumstances, unless the promisor specifically requests a specified form of acceptance. Id. § 30.

The last step in contract formation is a technical one that causes the most legal headaches, consideration. Typically, it will be difficult for a non-lawyer to determine whether consideration is present in an exchange of promises, it is a very gray area of the law. The legal definition of consideration requires a bargain between the promisor and the promisee. Id. § 71. If a bargain is not present, the law requires either (1) a gain to the promisor or a detriment to the promisee; (2) equivalence in the values exchanged; or (3) the parties exchange something of legal value. Id. § 79.

Typically, oral contracts are just as legally enforceable as written contracts. Written contracts are favored over oral contracts though, because the writing is proof of the terms of the contract, and will eliminate most discrepancies between the parties if a dispute arises. A limitation to oral contracts is the Statute of Frauds, which requires certain contracts to be in writing.

The most basic definition of the Statute of Frauds is that certain contracts must be in writing to be enforceable; an oral agreement will not suffice. Contracts that must be in writing include: (1) contracts that cannot be performed within one year; (2) contracts involving the sale of goods (e.g., cars, computers, furniture) valued over $500; (3) contracts to pay another’s debt (i.e., think: cosigner and sureties). Minn. Stat. §§ 336.2-201, 513.01; UCC § 2-201(1). While the last two types of contracts that are within the Statute of Frauds are straightforward, the first type of contract takes a bit more thought. When a contract falls within the Statute of Frauds, and does not satisfy the Statute of Frauds, the contract is not contractually binding.

An example of a contract that cannot be performed within one year is if on January 1, 2010, a homeowner contracts with a paving company to pave the driveway on June 1, 2011. The contract was formed on January 1, 2000, but the paving company would not be performing its contractual duty until a year and a half later. This contract falls within the Statute of Frauds because the contract will not be performed within one year. The Statute of Frauds mandates that the contract between the homeowner and the paving company be in writing (i.e. an oral agreement will not be sufficient).

If the contract between the parties is of the type that is covered by the Statute of Frauds (see three types above), the next step is to determine if there is any writing memorializing the parties’ agreement. A writing is defined as anything that reasonably identifies the subject matter of the contract, is sufficient to indicate that a contract has been formed between the parties, and states with reasonable certainty the parties’ obligations. Restatement of Contracts, 2nd §131. The writing does not have to be a single document, it can be several writings (e.g. emails, letters, faxes) pieced together. Each writing is not required to be signed, so long as one of the writings has a signature of the party disputing the validity of the contract. Further, a writing is sufficient even if it states the terms of the parties’ agreement incorrectly, unless the mistake deals with the quantity of goods. If the writing incorrectly lists the quantity of goods to be exchanged between the parties, the writing is insufficient to satisfy the Statute of Frauds.

The writing must contain the signature of the party claiming the contract is unenforceable. The writing is not required to have the other party’s signature in the sense that the party signed with a blue pen on a specified line, the signature requirement is quite lenient. A signature is legally defined as “any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” Id. at § 134. For example, initials, business letterhead, an “X,” an automatic signature at the bottom of an email, or a symbol are all sufficient to constitute a signature. If one of the writings between the parties contains a signature of the party disputing the contract, and the writings do not misstate the quantity of goods to be exchanged between the parties, the Statute of Frauds is satisfied, and the contract is legally enforceable.

If the contract is between merchants (persons who regularly deal in the trade), and includes the sale of goods over $500, there are some exceptions to the Statute of Frauds. If the party claiming the contract is unenforceable received confirmation in writing from the other party describing the oral agreement, and the party claiming the contract was void did not object to the written confirmation within ten (10) days, the oral agreement is an enforceable contract. UCC § 2-201(2). For example, if a guitar manufacturer orally agrees to supply a store with 1,000 guitars, then a week later sends a purchase order to the store for the guitars, and the store does not object to the purchase order within 10 days, the agreement is a binding contract. Because the merchant exception bypasses the Statute of Frauds, a signature from the party objecting to the contract (the store from above example) is not necessary.

There are three other exceptions to the Statute of Frauds, which relates to the sale of goods over $500. (1) If the goods are specially manufactured for the buyer, and the goods are not suitable for sale in the ordinary course of business, an oral agreement is an enforceable contract. UCC § 2-201(3)(a). For example, if the guitar store from the above example ordered 1,000 guitars with their store logo carved into the guitars, the guitars would not be suitable for the guitar manufacturer to sell to another store and there would be no need for a writing. (2) If the party objecting to the oral agreement admits on the record (in a legal pleading, testimony, or otherwise in court) that such an agreement was made the oral agreement is enforceable. UCC § 2-201(3)(b). (3) If payment has been made and accepted for the goods, the oral agreement is enforceable. UCC § 2-201(3)(c). For example, if the 1,000 guitars were delivered to the store after an oral agreement was made, the store made partial (or full) payment to the guitar manufacturer, the oral agreement is now a binding contract.

Clarence J. Kuhn (“C.J.”) is the founding principal of Kuhn Law Firm, PLLC. Before founding the firm, C.J. was an attorney with a prestigious and nationally renowned law firm ranked by Chambers and Partners as the No. 1 law firm in the U.S. with a specialty in complex litigation.

C.J. has been named a Super Lawyer Rising Star by Law & Politics Magazine – only 2.5% of Minnesota attorneys are selected for this honor. Among other things, C.J. is a board member of the Hennepin County LRIS Lawyer Oversight Committee, a member of the American Bar Association, and the Hennepin County Bar Association. C.J. is admitted to practice in Minnesota, Texas and Arizona. C.J. is an avid outdoorsman, and enjoys spending time with his wife, and their two children.

What Is a Judgment Enforcement Agency?

There are many web sites describing themselves as being a national Judgment Enforcement Agency (JEA).

There is nothing wrong with having a web site with a name resembling “Judgment Enforcement Agency”. However, it is important to understand that most web sites that say or imply this, are not actually national JEAs.

Both collection agencies and lawyers, can enforce judgments for you. Post judgment lawyers get paid by the hour. Judgment Enforcers (JE) only get paid for success. However, JEs cannot enforce judgments for you until they become the legal owner of your Judgment.

JEs must buy your judgment – and become the new owner. JEs must be assigned (transfer ownership of) your judgment in its entirety. Such an assignment must be notarized and endorsed by the Court.

Some States are making judgment enforcement a part of debt collection law, and are requiring or trying to require JEs to become collection agencies.

Even when a (non-lawyer) JE has a team or office with more than one person, in most States and situations, only one person can sign Court documents, appear in Court, and be the legal enforcer of a judgment. In most States, a corporation, LLC, or partnership cannot represent itself in civil Court.

In most States and situations, JEs have to appear in Court as a person, not a company. Even sole JEs are not really alone. Most do a lot of outsourcing with marketing, private investigators, process servers, other JEs, and lawyers.

If one calls themselves a collection agency or a judgment enforcement agency, they must abide by all local and State laws regulating a collection agency in every location they work in.

Some States require everyone owning or working at the collection agency to meet strict State requirements, such as bonding and background checks, and have (and maintain) a certain amount of financial net worth.

Anyone meeting the local and State requirements can be a collection or a judgment enforcement agency without being an attorney. Ironically, most states exempt attorneys from becoming a collection agency.

Even when an attorney runs a judgment enforcement agency, State laws sometimes control them. As an example, Florida requires an attorney to become a collection agency if the majority of the firm’s caseload involves collections. Interestingly, attorneys and law firms have recently been sued by state Attorney Generals for FDCPA violations, and infractions.

So, if a web site or a person tells you that they are a Judgment Enforcement Agency, ask them if they, and all their advertised agents meet all State and local laws. Be aware, if someone says they are representing an agency but are not legally doing so, in some States, the original judgment creditor may be liable for damages as well as the non-agent enforcer.

Importance of Legal Instruments and How to Obtain Them

Legal instruments are used for any type of legal executions or proceedings. Such instruments are helpful for people who are involved in legal transactions. These instruments express a legally enforceable act or process. In fact, these instruments represent contractual duty, obligation or right. Examples include an affidavit, deed, power of attorney, certificate, bond, contract, will, legislative act forms, etc. These are perfectly legal and can help in legal proceedings, formal legal agreements, formal legal acts or any type of transactions.

Such legal instruments are supported by the local or regional governments and can be obtained from any public notary. Only an authorized person can help in authorizing legal instruments such as affidavit forms, deed, power of attorney, certificate, bond or a contract. It not only includes statements (of oath) from the people involved in the process of transaction, but also guarantees the written statement.

There are different types of legal instruments available like:

Deeds:

Deed forms are the important documents that are legal and can be related to any legal matter or transaction. Mainly, it is used to transfer real property amongst buyers and sellers. The main purpose of deeds is to assign or convey or delegate the property. It is primarily used at the time of real estate transactions. In fact, each and every real estate transaction needs legal deeds to accomplish the process.

For most people, deeds are only used in real estate transactions, which is particularly true. It can be seen in land contracts, purchase agreements, sale agreements, in the documents of grantors and grantees, etc.

Affidavits:

It is a vital legal instrument that is ideally authorized by the state or national governments. It assists in ascertaining the truth about a particular subject matter or a written statement or a formal oath. People use affidavits to support their statements or any other personal documents. These are also used in the declarations about ownership of the land or property.

Affidavits may be written in the first or third person; however, it is basically dependent on who drafted the document. It is a perfect document that can be used for judicial proceedings.

Today, due to the advent of internet, it is easy to obtain all types of legal instruments such as an affidavit form or a deed, or a power of attorney form or any other instrument from the online directories. These online legal directories are the perfect answers for all your legal instrument needs. In fact, you can easily find vital accounting, tax related and declaration forms from these directories.

Online legal directories are the ideal resource for legal information, local lawyers, law consultants, law enforcement, litigation, divorce, automobile accidents, solicitor, and law firms around the region. Their database itself serves people and addresses their needs.

Judgment Enforcement Techniques

When a matter goes before a court, a judge makes a decision to pass or deny a verdict. If that verdict is about one party owing money to another, it’s called a civil judgment. If the defendant does not pay you (few do), then you need to follow the court, state, and federal laws about recovering your judgment money. The court may have forms, but they cannot help you to enforce your judgment.

To enforce your judgment, you need to follow laws carefully. The use of procedures and methods to get some or all of your money is called enforcing a judgment. The exact steps you take depend on which are best fitted for the circumstances of the debtor.

There are several ways to enforce a judgment, that involve getting permission from the court. Here are three of the ways:

1) Get a Writ (also called a FiFa or a Warrant) from the court. The Writ allows you to ask the sheriff to take assets such as money from a debtor’s bank account or seizing part of their wages. You can also have the sheriff seize and sell some of the debtor’s property at a sheriff’s auction.

2) Get an assignment order from the court. This requires a court hearing where a judge decides if you can intercept a cash flow stream going to the debtor.

3) Get permission from the court to do an examination of the debtor. You can obtain information which can be used to enquire about the financial situation of the debtor. You can ask for the production of documents from the debtor or anyone that owes money to the debtor. This process is rarely used for directly retrieving the money.

Judgment enforcement sounds like an easy job but it is not. Once the court makes the decision to issue a judgment, it’s up to you to chase the money that is owed to you. Unless you outsource the enforcement of the judgment, you will be the one who has to enforce your judgment.

The vast majority of people will in some degree refuse to pay the amount that they legally owe. It is really surprising how many people will simply ignore the judgment. This is the situation where active judgment enforcement is required.

This may become a situation where judgment enforcers will come in handy. You can find a judgment enforcer that will try to enforce the judgment. They cannot guarantee that they can enforce your judgment, but they only get paid if they are successful, so they will try. It usually costs you nothing if they are not successful. All judgment enforcers charge some portion of what they successfully recover.

Judgment recovery professionals are well educated on the legal recovery methods to claim the money that is owed to you. Judgment recovery professionals, like detectives, will search through individual or business assets to find a way to uncover the hidden cash that should have been used to pay the debt after the trial.

Judgment enforcers have national connections, in case the debtor moves. They have access to the databases and resources which can be used to increase the chances of getting your money back from the debtor. With the help of these resources, judgment enforcers, assuming the debtors have assets, are able to recover unpaid judgments fairly quickly.

Some recovery operations might take some time to implement. If you want some immediate relief and don’t have time to wait for judgment enforcement, some judgment enforcers can pay you cash up front for your judgment. Be aware cash judgment sales are for a small fraction of the face value of the judgment, as anything can happen, including bankruptcy or death of a debtor.

Most judgment enforcers enforce judgments on a future pay basis, paying you about half of whatever they can collect from the debtor. This fee varies, not so much from company to company, but more often depending on the debtor’s financial condition. Whatever the fee charged, it’s usually worth it not to have to work and spend to enforce your judgment.

Child Support Enforcement Options

Child support is an important part of divorce settlements and court arrangements, as these payments can provide financial assistance when a parent might otherwise suffer alone. However, not all parents are particularly quick to offer their help in terms of court-ordered support funds, and may attempt to skip payments altogether. As with anything settled by a court, these payments are mandated by the law, meaning that it is illegal to violate child support agreements. Parents who need this form of assistance and cannot seem to secure payments from their ex-spouse do have legal options.

One of the most common legal responses to a parent skipping out on child support payments is to garnish their wages. Wage garnishment creates a legal order that redirects some of a person’s paycheck, moving funds away from personal accounts into a court-ordered source. In this case, a person is not given the freedom of paying for child support on their own, as they have proven too irresponsible to have that sort of liberty over their finances.

If a parent is continuously missing payments and does not have the money to provide support, the government may order that certain properties become seized until payment issues can be resolved.

In addition to garnishment and seizure, more direct legal action can be taken against an unresponsive parent. Charges that include holding that individual in contempt of court can be filed against parents who refuse to provide support to their ex-spouses. These kinds of charges can vary depending on the jurisdiction, but some of the harshest legal penalties for failure to pay for support orders can even include brief jail sentences.

Considering that child support enforcement and payment laws differ between various jurisdictions, the best course of action for a person interested in this field of law is to contact a divorce lawyer for more information.

Are Non-Competition Agreements Enforceable or Not?

Non-competition agreements usually bar healthcare professionals both from encouraging patients to follow them to a new practice and from practicing for a certain period of time within a certain distance of the former employer’s location. There is much debate in the healthcare and legal communities, however, over the extent to which these non-compete clauses are enforceable-if at all. The truth is that non-competition agreements are sometimes enforceable and sometimes not, depending on their specific restrictions and circumstances.

Advantages

Employers often consider non-compete clauses a legitimate condition of employment since an employee develops skills, knowledge, and reputation because of his or her association with the employer. These agreements also serve to protect the employer’s investment in employees by discouraging them from leaving the practice in the first place. It seems disingenuous for an employee to receive the long-term benefits of working in an established practice only to subsequently leave the practice and compete for the same patients. Employers may be legitimately concerned about healthcare professionals working with a group solely to develop a patient base and referral sources before opening their own practice. Non-competition agreements, may alleviate these concerns.

Disadvantages

One important consideration in using non-competition agreements is the hardship that they can cause the employee. A geographic restriction may force an employee leaving the practice to relocate outside the restricted area, which could entail a major, life-altering move. Some in the medical community are wary of this seemingly “inherent unfairness” in requiring a healthcare professionals to give up their future right to work as a condition of current employment.

There are also less obvious hardships caused by non-competes. For example, an employer who knows employees will be reluctant to leave the practice, may be less concerned about employee retention. The employer may be less sensitive to employees’ needs and concerns or may be less likely to offer pay increases. Employees who are worried about the adverse effects of non-competition agreements should negotiate with their employers for the narrowest possible restrictions, and consider negotiating for additional compensation or severance in exchange to agreeing to the non-compete.

Non-competition agreements may also have an adverse effect on some patients, who are forced to stop seeing their preferred healthcare provider because of a non-competition agreement. It may result in increased costs for the patient, decreased quality of care, and lowered satisfaction.

Enforceability

Employers should make sure they attempt to enforce non-competition agreements in a consistent, timely manner. If an employer only enforces the agreements some of the time, a court may refuse to enforce any isolated one. Enforcing these non-compete agreements can be problematic, though, since courts construe the agreements narrowly and determine their enforceability on a case-by-case basis, considering all of the attendant circumstances.

Arizona courts generally disfavor non-competition agreements. Thus, courts read the restrictions in a non-compete as narrowly as possible, with any ambiguities being construed against the employer. To be enforceable, a non-compete agreement cannot merely be aimed at protecting the employer from competition. Rather, the agreement must be drafted to protect the employer’s legitimate interest in preventing, for a limited time, a leaving employee from using information or relationships that were acquired by the employee during the course of employment because of the employer.

In determining whether a non-compete is reasonable, courts look at all of the surrounding circumstances. Generally, a non-compete clause is unreasonable (1) if the restraint is greater than necessary to protect the employer’s legitimate interest, or (2) if that interest is outweighed by the hardship to the employee and the likely injury to the public.

The first factor, whether the restraint is greater than necessary to protect the employer’s interest, depends on the duration of the agreement and the scope of its geographic limitations. Courts consider the restraint too great if the limitations last too long or cover too great a geographic area.

With respect to the second factor, whether the employer’s interest is outweighed by the hardship to the employee and the public, Arizona courts are generally wary of non-competition agreements between healthcare professionals. Courts have held that patients are entitled to choose their own provider, regardless of the contractual obligations between their provider and his or her former employer. Courts reason that the harm to patients who are restricted from choosing their healthcare provider is greater than an employer’s economic interest in enforcing a non-competition clause.

Accordingly, non-competition agreements between medical professionals and their employers are read very narrowly. Each agreement is considered on a case-by-case basis to determine if the public policy considerations at play outweigh the employer’s interest in protecting its investment through enforcing the non-compete clause.

In contrast, non-competes are less scrutinized when it comes to the sale of a practice. When a dentist sells a practice, the value of the practice’s goodwill and its existing patient base usually figures prominently in into the purchase price, so the buyer of the practice is allowed some protection from competition from the former owner.

The Blue Pencil Doctrine

“Blue penciling” occurs when a court decides not to enforce certain sections of a non-competition agreement that it considers too broad, but still enforces the rest of the agreement. Instead of declining to enforce the entire agreement altogether or rewriting unenforceable provisions, the court will literally cross out unreasonable provisions but keep the rest of the agreement intact. A key component of the blue-pencil doctrine in Arizona is that courts can strike out unenforceable parts of the contract, but it cannot otherwise add to or change the terms. Some courts disfavor the practice of blue penciling, however, because it tends to encourage employers to draft non-competition agreements with broad or additional terms that can have the effect of scaring employees into never leaving the practice.

Step-Down Provisions

Step-down provisions, combined with severability clauses, are the best way to make sure a non-competition agreement is enforceable. These terms provide alternative time and area restrictions that allow a court using the blue-pencil rule to strike restrictions it considers too broad while enforcing a less restrictive provision. A sample step-down provision might be similar to the following:

NONCOMPETITION. For the TIME PERIOD set forth in paragraph 2, Employee shall not, directly or indirectly, own, manage, operate, participate in or finance any business venture that competes with the Company within the AREA…
TIME PERIOD. TIME PERIOD for purposes of paragraph 1 shall mean the period beginning as of the date of Employee’s employment with the Company and ending on the date of death of the employee; provided, however, that if a court determines that such period is unenforceable, TIME PERIOD shall end five (5) years after the date of termination; provided, however, that if a court determines that such period is unenforceable, TIME PERIOD shall end six (6) months after the date of termination.

Because different courts rule differently on what provisions are overly broad, it is important to have an attorney draft these provisions if the practice wants to ensure that they are not stricken altogether.

Remedies for Breach

Injunctive relief is usually the most desirable option for the employer, as it allows the employer to immediately stop the competitive behavior before very much damage is done. Injunctions can be a difficult to acquire, however, as courts consider them an especially extreme form of relief. This does not mean that injunctive relief provisions are always unenforceable. Although consent to injunctive relief does not guarantee that the relief will be entered by a court, it goes a long way to increase a court’s comfort level with the remedy.

Alternatively, money damages may be available if the former employee’s breach was the actual cause of the monetary harm to the employer. This form of relief, however, may take years of litigation to acquire.

Conclusion

Non-competition agreements can be a useful tool for healthcare practices, but making sure those agreements will be enforced can be extremely difficult and requires a high level of precision. On the other hand, an employee struggling to work around a non-compete agreement can rarely know for sure if it is truly enforceable or not, since courts consider each one on a case-by-case basis, considering all of the attendant circumstances. The best way to deal with non-competition agreements is to find an attorney with a thorough understanding of the law regarding these restrictive covenants.

DISCLAIMER

The information in this article has been prepared for informational purposes only and does not constitute legal advice. Anyone reading this article should not act on any information contained therein without seeking professional counsel from an attorney. The authors and publisher shall not be responsible for any damages resulting from any error, inaccuracy, or omission contained in this publication.

Article Source: http://EzineArticles.com/5599753

Is Travel Insurance Legalized Gambling?

Some people think “Isn’t travel insurance just legalized gambling? I think every time I don’t file a claim, the company wins. Right?”

I wouldn’t say it’s a gamble, though there’s risk involved with any kind of contract you enter into. Insurance is a unilateral contract because only one party, the insurer, has made a legally enforceable promise, such as to pay covered claims.

Here’s how I explain it:

Buying travel insurance is a risk: You are trading a known certainty (your hard earned money) for an unknown quantity – the promise of the insurance policy doing what it says. This is why I pre-screen the plans we offer.

People manage the risk of losing money on a trip different ways:

Some people use the same insurance company for every trip
Some self-insure
Some ignore travel / trip / cruise insurance altogether
Some take their agent’s advice
Some shop around
Some forget

Even though I sell travel insurance, I believe insuring a trip is a personal decision. None of these choices is inherently right or wrong, they are just a matter of personal preference.

Now, sometimes you have to lay aside your own prejudices in order to protect other people from the negative result of your decision. For example, when I was a life insurance agent, it surprised me how many people purposely ignored their family’s financial condition should they die young. They always thought they’d beat the system by living long. The trouble is that death is permanent & guaranteed.

If losing money by not traveling, having an expensive medical claim or needing a costly emergency evacuation wouldn’t burden you nor destroy your finances, then the need for travel insurance probably doesn’t exist for you.

If any of those events would cause you distress, consider getting travel insurance for your trip.