How We Are Different from Other Small Business Contract Attorneys

Our goal and our Mission is to resolve small business breach of contract disputes as speedily and effectively as possible at the lowest possible cost.  Spencer Ball has the knowledge and methods honed from 25 years experience with all manner of real estate contracts.  He can help you with small business contracts and in settling other disputes, litigation and other difficulties.  Call us at (801) 453-2000 for free information or go to our Contact Us page and send us your question or issue.

 Is an Oral Contract legal and binding?

Most contract made orally are binding and enforceable, even when there is no writing of the agreement.  The real problem with oral
contracts is that it is often more difficult to prove the contract terms.  Therefore, there is much more opportunity for misunderstandings which can result in disputes and lawsuits.

It is much safer and easier to prove that there was a contract and what the terms of that contract are if it is put in writing and signed by all parties.  Follow-up letters and emails are an easy way to memorialize the contract terms, which reduces the chance of a burdensome lawsuit.

When is it necessary to make agreements in writing?

While it is always advantageous to make all agreement in writing where possible, Utah Law requires some contracts to be in writing in order for them to be enforceable in court.  This law is known as the Statute of Frauds.  It is found in Utah Code Ann. section 25-5, sections 1-9.  Some common agreements requiring a writing under the Statute of Frauds are described below:

• Any giving or granting of an interest in real estate, land, buildings or homes must be in writing and signed by party giving it.  The only exception to this rule are contracts for the lease of real estate up to and including one year in length.
• Any contract which requires more than one year to be performed.
• Any contract with a real estate agent or broker to pay a commission upon the sale of real estate.
• any prenuptial agreement or a cosigner’s agreement to be surety for payment of a debt.
• In addition to the above agreements, another Utah statute known as the Uniform Commercial Code requires a writing for an contract for the sale of any goods or merchandise in value of $500 or more.

Can I sue or be sued for both fraud and breach of contract?

In court, a breach of contract occurs generally when one party has performed his duties under the contract as agreed and the other party to the contract fails to perform.

Fraud is a completely different cause of action in a lawsuit.  To commit fraud, a person has to make a false representation, knowing that it was false at the time he makes it. The other person must reasonably rely on the statement, and suffer damages or loss as a result.  In Court, there is a higher standard of proof which must be shown to the court, which makes fraud a more difficult case to win. For example, if someone makes a purchase of goods or services from your business on credit, and then fails to pay for the same as agreed, that is a breach of contract.  If the person knows at the time that he takes the goods or services that he does not intend to pay for them, he has committed fraud.

You can sue such a person for both breach of contract and fraud, but the fraud claim of your lawsuit is more difficult to prove.  The court must see “clearly and convincingly” from the evidence that the other person really did intend to not pay for the goods or services, or took them knowing that he would not pay or could not pay. In this country, anyone can bring a lawsuit for anything against anyone.  Therefore a party may sue for breach of contract and for fraud, knowing that the claim for breach of contract will be easy to prove to a court, while the fraud claim will be difficult to prove.

The party expects to probably lose on the fraud claim, unless new evidence turns up during the discovery phase of the lawsuit.  The extra fraud claim, however, can result in serious resources having to be spent on prosecuting or having to defend the fraud part of that lawsuit.

How secure are my employment and insurance agreements?

Two particular areas where business owners can make costly mistakes are in their contracts with their employees and their insurance contracts.  A business can protect itself from wrongful discharge and other suits in the way they draft their offers of employment.

For example, it is highly advisable to give a written offer of employment with clear language that the employer can terminate the employee at will.  A three month probation period can offer protection from lawsuits from a new employee who tries to take advantage of an employer, but is discharged during that three month period.

An employee handbook which clearly defines particular policies and terms of employment at will can be a benefit to a business. However, there are many things which an employer can unnecessarily include in the handbook which courts will regard as a contract with the employee.  These can be binding on the employer to the employer’s disadvantage, whereas there would be no employer obligation without it.

Insurance can offer protection to businesses from risks which business owners might not realize is available.  A good Disability
insurance policy can give the necessary coverage to allow a business owner to keep his business open during the period of a serious illness or injury.  It can also provide the financial means to keep the business open until a disabled owner can find a buyer for that business.

An umbrella policy can offer peace of mind in giving general coverage for  liability which exceed policy limits of other policies. Insurance contracts can also turn one’s peace of mind into a rude reality upon finding that a policy did not cover certain events or occurrences.  Insurance policies must be carefully reviewed to see that they actually offer the coverage a business owner expects and relies on.  Call our office to have a full audit of all your business contracts, to see where you are lacking or at risk in today’s complex legal environment.

Is it worth going to Court if the person or business I am suing has no money?

Prior to spending money in going to court, you first need to find out if the party has assets which you can collect.  At our office, we are able to do a preliminary check of county court records to see if an individual or business has lawsuits or judgments already against your debtor.  We can check bankruptcy records as well.  We can also check for real property as well as what mortgages may be against such property in Salt Lake and Utah Counties.  We can also hire a skip tracer to determine what assets the debtor may have, with varying degrees of thoroughness, depending on the cost.  Most of the time we can determine whether the cost of a collection lawsuit makes sense for a large amount of money.

It is always advantageous to get business debtors to sign separately as a guarantor of all amounts owed to you on every major contract where you can get them to be a guarantor.

What are the chances that I can be sued for breach of contract?

As a businessperson, it is hardly possible to do business without making many business contracts.  Every customer purchase is a contract.  The purchase of business tools, equipment, the lease or purchase of office, warehouse or retail space, and so on are all occasions when misunderstandings can occur between good people acting in good faith.  People who deal unfairly are also very much a large part of people we do business with.

Every business in this country and in Utah, sooner or later, will invariably be sued at some point in time.  A breach of contract is always fertile ground for disagreements to mushroom into bitter expensive lawsuits.  When your valuable time and resources are spent on a vexing lawsuit, it detracts from what you could be doing to expand your business.

The worry and uneasiness of an uncertain outcome in a lawsuit, as the expenses of that lawsuit pile up, is a serious drain on financial resources.  It also can be even a much larger drain on your time, efforts and commitment which you could be devoting to serving your customers and making your business grow.

Our goal and mission is to review your business practices with a view on how to make your contracts and agreements as sound as possible, where breach of contract situations are much less likely to occur.  While disputes cannot ever be totally avoided, we are committed to reduce the risks of such disputes ever turning into needless lawsuits.  It is really true that in business, an ounce of prevention and preparation can be worth a ton of cure.

Call us today at (801) 453-2000 to see just what we can do to bring your risk of unnecessary lawsuits as low as possible.  We can conduct a full audit of your business in not only the way you make agreements, but also in many other areas to prevent lawsuits, and to make your business rest on a sound legal and financial footing.

We give you the ability to do what you do best–on concentrating on making your business grow and succeed.  We will give your business a full audit of all areas where you are at risk and which are or can be a serious drain.  Your audit appointment is a $750.00 value, and we will do it without charge if you mention this website.