Legal Forms Valid and Enforceable

8/9/2019 Legal Forms Valid and Enforceable

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Michael Carabash, B.A., LL.B., J.D., M.B.A. [email protected] Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com

Prepared By: Page 1 o

Michael Carabash

Is My Legal Form

Valid and Enforceable?

DISCLAIMER: Please note that the information provided in this DL Guide is NOT legal advice an

provided for educational purposes only. Laws are subject to change quickly and without notice. This

Guide may be outdated. You are always advised to consult with a lawyer if you have questions abou

validity and enforceability of a legal form in Ontario, Canada (e.g. make a post on Dynamic Lawyers).

have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help

You can contact Michael Carabash directly at [email protected].

Last Updated: March 2010

© 2008-2010, Dynamic Lawyers Ltd. All Rights Reserved.

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Is My Legal Form Valid and Enforceable? Page 2 o

Table of Contents

Introduction ....................................................................................................................................................

Clear, Complete, and Certain Terms ..............................................................................................................

Consideration ..................................................................................................................................................

Contrary to Public Policy ...............................................................................................................................

Duress ............................................................................................................................................................ Undue Influence .............................................................................................................................................

Unconscionable Bargain .................................................................................................................................

Misrepresentation ...........................................................................................................................................

Mistake ...........................................................................................................................................................

About Us .........................................................................................................................................................





Introduction

You download a template. It is incomplete. You read it over and finish it. Perhaps you even add a

provisions of your own to take into account your particular circumstances. Then you and all the other pa

sign it and deliver it to each other. So, is it a valid and enforceable contract? The answer is:

DEPENDS”. The truth is that parties may never know if their legal form is valid and enforceable unle

has been reviewed by a court at the conclusion of a lawsuit. But if you want to try to avoid having a ju

make that determination for you, there are a few things you should be aware of.

Under contract law, for a contract to be valid and enforceable, there are a number of basic requirem

concerning the SUBSTANCE of the contract (i.e. the terms and conditions of the actual contract) and

PROCESS of how the contract was entered into (e.g. was it entered into fairly and freely?). If there

issues with either the SUBSTANCE and/or the PROCESS of how it was entered into, then the contract ca

challenged in whole or in part. Having a lawyer on hand may help to mitigate these and other issues from

get go. In what is to follow, SOME of the more common ways in which contracts can be challenged wi

discussed. Bear in mind, however, that there ARE MANY OTHER WAYS a contract can be challen

For example, a statute may have minimal requirements that need to be met in order for a legal form to

valid. For example, the Ontario Substitute Decisions Act, 1992 states that witnesses are required for

signing of a Continuing Power of Attorney for Property and specifies who cannot be a witness. That’s

one tiny example. At the end of the day, you should always speak to a lawyer about your particular situa

to mitigate against potential challenges. So here we go…

Clear, Complete, and Certain Terms

First, the terms that are in the contract itself must be clear, complete, and certain enough to be enforcea

Long-winded, incomplete, and vague terms can be challenged and perhaps rendered invalid unenforceable by a court. So if you’re adding provisions of your own to a legal form, always ask your

“Is this term or condition clear enough for a reasonable person to understand?” and “Are important term

such as price, timeline, consequences, etc. – missing”? Worth noting is that an agreement to agree a

some critical part of the contract at a future time could also be challenged and struck down by a court

significant terms are left out of a contract and the parties simply agree to come up with an agreement a

them later, then the entire contract may be challenged! An agreement to agree is generally not enforceabl




The full DL Guide is available for FREE

with the purchase of a Legal Form.

http://www.dynamiclawyers.com/legal_forms_splash.php






Michael Carabash, B.A., LL.B., J.D., M.B.A. [email protected]

Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com


Overall, while there are MANY OTHER WAYS to challenge the actual SUBSTANCE of a contract, som

the more common ways are noted above. It is always recommended to speak with a lawyer (e.g. make a

on Dynamic Lawyers) if you have any questions about the substance of your legal form – particular

you’re modifying the template yourself! Now onto the PROCESS of entering into the contract.

Duress

DURESS is a legal doctrine that allows a party to challenge an agreement on the basis that they wer

seriously coerced by another’s party’s illegitimate exercise of power such that they could not freely con

to entering into the agreement. Examples of duress include threats or acts that are unlawful (e.g. crim

tortuous, breaches of contract, etc.) or illegitimate (e.g. threatening to refuse to enter into a contract o

terminate a contract lawfully unless…). Basically, if there’s some kind of unlawful or illegitimate pres

that isn’t in the normal course of market forces, then it could amount to duress. Specific examples c

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 e

into the agreement. Unlike DURESS, however, undue influence may exist without violence or threa

violence against a party. Undue influence depends on the RELATIONSHIP between the parties w

causes one party to confide in the other and leads the other to take advantage and exert a natural influ

over the other. Undue influence can be used to challenge a contract on the basis that a weaker party

dominated by or unduly influenced by the other party. Examples of relationships that could lea

challenging contracts based on undue influence include: doctor-patient, parent-child, trustee-benefic

priest-churchgoer, etc. So there’s a special relationship that involves trust, confidence and influence. To

around this type of challenge, a party could try to argue that the other party received full disclosure,

independent legal advice, and had only a minor disadvantage when it came to unequal power.

















Mistake

An agreement may be challenged in whole or in part on the basis that there was a mistake. Mistakes

made all the time. Sometimes, only one party makes the mistake (UNILATERAL MISTAKE). O

times, both parties make the same mistake (COMMON MISTAKE). And other times, both parties m

mistakes but their mistakes are different (MUTUAL MISTAKE). Interestingly, a contract may actu

contemplate that there is a mistake and how it ought to be dealt with. Sometime, the parties claim that t

was a radical or fundamental difference between the document they thought they were signing and

document actually signed (in terms of character, contents or otherwise). But the signer cannot raise

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

DuressUndue Influence

Unconscionable Bargain

Misrepresentation

Mistake

Note, that there are other ways in which a contract can be challenged – for example pursuant to the doctr

of promissory estoppel (i.e. where a party makes a clear and unequivocal promise or representatio

another party that it will not insist on its strict legal rights under the contract, and the other party alter

position in reliance on the promise or representation, the first party may be estopped from asserting its s

legal rights) or frustration (i.e. something outside the parties’ control makes it impossible for one or a

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 – ba

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 p

later on.














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Legal Forms Valid and Enforceable