Business Law

Contract Lawyer New York

by Fred Abramson

 

While lit­i­ga­tion may some­times be your only recourse, many times it is a result of sign­ing a bad con­tract or not fully exam­in­ing the con­tract you have signed.  Here are ten things to know before enter­ing into an agree­ment in New York that can help pro­tect your busi­ness and your assets:

1.      Know the Other Party

Be sure that the busi­ness you are con­tract­ing with is reg­is­tered to do busi­ness in the state in which you oper­ate your busi­ness.  Should there be a prob­lem later on, it will be much eas­ier to insti­tute a law­suit as the states main­tain addresses for ser­vice of process on reg­is­tered cor­po­ra­tions.  In addi­tion, if the busi­ness is not prop­erly reg­is­tered in the state, there could be legal issues with your con­tract.  The busi­ness should also be licensed in the spe­cific type of busi­ness it con­ducts, if this is required.

2.       Pric­ing Issues

If you are a buyer or a seller, know what you are pay­ing or get­ting paid, when the money is due, how it is to be paid, where it is being paid to.


3.      What is the Exact Prod­uct or Service

While this may seem obvi­ous there are thou­sands of law­suits on just this issue.  Be sure you and the other party are on the same page, lit­er­ally and figuratively.

4.      Deliv­ery of the Goods or Services

Spec­ify exact time frames for deliv­ery of the prod­uct or ser­vice and when pay­ment is due in rela­tion to this time frame.

5.      Con­di­tion of the Prod­uct or Service

Are the items new or used?  If used, how much?  If new, in orig­i­nal pack­ag­ing or repack­aged?  If a ser­vice con­tract, spec­ify who will be doing the ser­vice and his or her credentials?

6.      War­ranties

What are the guar­anties on the prod­uct or ser­vice?  What period of time do they cover?  What is the pro­ce­dure for repair­ing or replac­ing an item or cor­rect­ing a ser­vice mistake?


7.      Get­ting out of the Contract

While most con­tracts are made to avoid get­ting out of them, you can some­times nego­ti­ate an “out” clause for poor per­for­mance or lack of proper deliv­ery or other essen­tial things.

8.      Renewal of the Contract

Is there an auto­matic renewal?  Is there any option to renew?

9.      Default

There are sev­eral ways to default on a con­tract. Two preva­lent ways are non-payment and non-performance.  Non-payment can include not get­ting paid in full, on time or at all.  Non-performance can be not doing the job prop­erly, in full, or not how you expected it to be done.  All of these can be com­bated with reme­dies in the con­tract.

10.  Reme­dies

Make sure the con­tract has a sec­tion deal­ing with reme­dies for defaults.  Reme­dies are com­pen­sa­tion to the injured party for such defaults.  Out­side of the con­tract there are other ways to be com­pen­sated for default in con­tracts, includ­ing state statutes, fed­eral statutes like the UCC, fraud actions and ille­gal­ity of the con­tract, deal­ing with minors, duress, undue influ­ences, etc.

If you have any ques­tions regard­ing con­tract law, con­tact me at the Law Office of Fred­eric R. Abram­son at 212–233-0666

People who inspired me

by Fred Abramson

War­ren Buf­fett
Bruce Spring­steen
Jack­son Pol­lack
Steve Jobs
Julia Child
Mario Batali
Seth Godin
Rem­brandt
Thomas Jef­fer­son
Jerry Sein­feld
Sal­vadore Gaudi
Ghandi
Mar­tin Luther King
Theodore Roo­sevelt
Tom Peters
Albert Camus
Abra­ham Lin­coln
Bob Mar­ley
Andy Warhol
Nel­son Man­dela
John Lennon
Bobby Flay
Vin­cent Van Gogh
Ernest Hem­ming­way
Bill Gates
Henri Matisse
Rosa Parks
Andrew Carnegie
Albert Ein­stein
Socrates
Napoleon Hill
Radio­head
Franz Kafka
Muham­mad Ali
Richard Bran­son
Mom
Paul Cez­zane
Eli Wiesel
John Adams
Dad
James Joyce
Mozart
Leonardo Da Vinci
Pablo Picasso
Thomas Keller
John F. Kennedy
Jackie Robin­son
Ansel Adams
Learned Hand
Woody Allen
Thomas Fried­man
Sal­vadore Dali

and of course my wife and 2 children

Social Media Law

by Fred Abramson

Social Media such as Twit­ter, Face­book and Blogs are an easy way for employ­ees to com­mu­ni­cate with the world.  This can cause far reach­ing legal risks for employ­ers. What can be done to pre­vent social net­work­ing sites from being used as a sound­ing board for an unhappy employee, a place to dis­close trade secrets, or a means to defame bosses and co-w ork­ers? How can you pro­tect your com­pany from the pos­si­ble legal prob­lems due to social net­work­ing? I can help by advis­ing you how to:

  • Mon­i­tor employee use of blogs by telling you what’s legal & what’s not
  • Draft work­able blog­ging policies
  • Assess your lia­bil­ity risks from your employ­ees use of social net­work­ing site and blogs
  • To min­i­mize your risk for unnec­es­sary and expen­sive litigation
  • Com­ply with the New FTC reg­u­la­tions effec­tive Decem­ber 1, 2010 about blogging.

Here are some key issues that you need to be aware of:

  • Blogs in the Work­place: Legal Risks & Lia­bil­ity You Need to Know
    • How to legally mon­i­tor your employee’s use of social media sites with­out infring­ing on their legal rights.
    • Does the employee or com­pany own the blogs or social net­work­ing account?
    • If an employee posts some­thing on a blog, or a social media site, can the employ­ers be held liable?
    • Strate­gies to pro­tect con­fi­den­tial and busi­ness information
  • What is legal for your Employ­ees to Blog about
    • What to do about bad com­ments of your employ­ees in their per­sonal blogs
    • What can you do to limit blog­ging by your employ­ees when they are not working
    • What is the dif­fer­ence between bad behav­ior and the first amend­ment right to free­dom of speech?
  • Draft­ing Social Media Policies:
    • How to draft a social net­work­ing  pol­icy to pro­tect your com­pany while bal­anc­ing your employ­ees right to privacy
    • Why you may not want to restrict from your employ­ees from engag­ing in social media
    • How you can enforce the restric­tions placed in your social media policy.
    • Assess­ing your employ­ees rights  under the  National Labor Rela­tions Act
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Social Media Law

What You Need to Know About Registering your Business Name in New York

by Fred Abramson

Sole pro­pri­etor­ships, such as com­puter con­sul­tants using a name other than the owner\‘s name should file a Busi­ness Cer­tifi­cate with the County Clerk\‘s Office in the county where the busi­ness is located.

Gen­eral part­ner­ships, which are oper­at­ing a busi­ness under an assumed name should file a Busi­ness Cer­tifi­cate for Part­ners with the County Clerk\‘s Office in the county where the busi­ness is located.

Cor­po­ra­tions, LLCs, LLPs, and lim­ited part­ner­ships reg­is­ter an assume name as part of their required busi­ness fil­ings with the New York Depart­ment of State.

What You Need to Know About Registering your Business Name in New York

New York Independent Contractor and Consulting Agreements

by Fred Abramson

New York Independent Contractor and Consulting AgreementsAs an inde­pen­dant con­trac­tor, there is no employer-employee rela­tion­ship with the per­son or com­pany that you are doing busi­ness with.  The inde­pe­dent con­tract is a con­sul­tant who per­forms spe­cific duties that the con­sul­tant is capa­ble of performing.

At the start of the rela­tion­ship, it is absolutely vital to have an inde­pen­dent con­tract agree­ment (also known as a con­sult­ing agreement) drafted to pro­tect both par­ties.  The con­se­quences of fail­ing to estab­lish a con­sul­tant as an ind­pen­dent con­trac­tor can have dire tax consequences.

In your inde­pe­dent con­trac­tor agree­ment, it is impor­tant to estab­lish that the con­sul­tant per­form­ing the ser­vices is is not under the con­trol of the employer.  In addi­tion, the employer may not directly super­vise the con­sul­tant.

When it comes time to draft an inde­pen­dent con­trac­tor agree­ment, you should focus on the fee for ser­vices ren­dered and pro­vide a com­plete descrip­tion of the ser­vices that are to be provided.

Why You Need to be Clear About The Subject Matter When Drafting Contracts

by Fred Abramson

One of the most basic parts of a con­tract is describ­ing its sub­ject mat­ter.   The sub­ject mat­ter is the part of the con­tract where you, the client, has the most imput. Generally, the sub­ject describes the ser­vices that are to be per­fomed, the goods that need to be sold, the prop­erty that needs to be assigned. 

When describ­ing the sub­ject mat­ter of your con­tract be aware of the following:

  • What are the basic facts of the con­tract?  A well-drafted con­tract requires an aware­ness that words have impli­ca­tions.  For exam­ple, dur­ing nego­ti­a­tions you may have agreed to pur­chased gold.  When you receive the con­tract, the seller may have changed the sub­ject to met­als.  This would have seri­ous impli­ca­tions if the seller ships you sil­ver instead of gold.
  • What do com­mon terms really mean?  A com­mon term may change its mean­ing over time, so it is best to define it in the sub­ject sec­tion of the contract.

Interference with a Business Opportunity

by Fred Abramson

You have been nego­ti­at­ing for months with a sup­plier.  A com­peti­tor becomes aware of your nego­ti­a­tions and derails the deal.  Can you recover for your dam­ages?  Under the Tort of Intef­er­ence with a Busi­ness Oppor­tu­nity you may.

Gen­er­ally, the types of oppor­tu­ni­ties that can be sub­ject to such a claim include:

  • Sale or Pur­chase of a Business
  • Sale or Pur­chase of Property
  • Employ­ment Opportunities
  • Sale of Goods
  • Con­struc­tion Contracts
  • Pro­fes­sional Relationships

In order to prove the tort of Inter­fer­ence with a Busi­ness Oppor­tu­nity, you must show:

  • That there is an oppor­tu­nity in exis­tence that is defi­nate and spe­cific in scope and capa­ble of being acted upon
  • The other party had knowl­edge of the opportunity
  • The other party with intent intef­ered with the opportunity
  • They actu­ally caused dam­age to your interests
  • Actual Dam­ages

More Read­ing:

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What to do if a Former Employee Solicits Customers?

by Fred Abramson

Your star sales­per­son has decided to jump ship to a com­peti­tor.  She has taken your cus­tomer list and has started solic­it­ing for busi­ness. What can you do to stop her?

Under New York Con­tract Law, you may be able to obtain a per­ma­nent  injunc­tion against her where she would be pro­hib­ited from solic­it­ing your clients. 

A pre­lim­i­nary injunc­tion can be granted in the early stages of a law­suit. For exam­ple, a pre­lim­i­nary injunc­tion may be appro­pri­ate to stop a for­mer employee from doing busi­ness or solic­it­ing any cus­tomers of the cor­po­ra­tion who where cus­tomers of the com­pany when she was employed by the company.

Gen­er­ally the com­pany needs to show that there was a writ­ten con­tract between the employer and employee and that the non-solicit clause was rea­son­able in terms of time and scope.

How are goods delivered if someone else has possession of them?

by Fred Abramson

It is not unusual where you may be pur­chas­ing goods that a third party has pos­ses­sion of, such as a ware­house or a bailee.  In such an instance, you should be clear in the con­tract where the deliv­ery should be made.

Under the UCC, which cov­ers the sale of goods, if the con­tract is one for goods that are iden­ti­fi­able and are known by both par­ties to be in a loca­tion that is not in pos­ses­sion of either party, then deliv­ery is where the goods are located.   If you agree to pur­chase a car, and the car is located in ware­house owned by some­one else, then the buyer has to pick up the car at the warehouse.

Should You Litigate?

by Fred Abramson

Should You Litigate? Just because you may have a claim to start a law­suit does not mean you should.  Litigation can be expen­sive.  It is absolutely crit­i­cal to assess the eco­nom­ics in start­ing a law­suit before doing so. 

Dur­ing your ini­tial con­sul­ta­tion with an attor­ney, you have to con­sider the amount you are plan­ning to sue for, what relief you expect to be granted, and the expense involved in obtain­ing a judgment. If you are being sued, you must weigh the cost of defend­ing the law­suit against the price of set­tling the case.  Here are some fac­tors you should look at:

  • Cost of Lit­i­ga­tion.    You know that lit­i­ga­tion is expen­sive.  A case can cost any­where from $3,500.00 for a sim­ple mat­ter t0 hun­dreds of thou­sands of dol­lars for c0mplex litigation.
  • What are your resources?   Does your adver­sary have deep pock­ets?  Do you have enough money to fund your case to trial?  If you don\‘t have the finan­cial means, lit­i­ga­tion is not for you.
  • What is your emo­tional makeup?  I hate to say it, but lit­i­ga­tion can take years.  If you want to change the sys­tem, con­tact your local assem­bly per­son and ask for more court funding. 

If you have the finan­cial abil­ity and you are able to delay grat­i­fi­ca­tion, con­trol your emo­tions and think ratio­nally, then you should litigate.

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