KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com
******************************
Is unsigned contract enforceable / still time to reserve private meeting at ISC
June 9, 2021
*****************************
Is unsigned contract enforceable?
*****************************
Ken
If a contract is unsigned by a company rep can the subscriber claim the contract is unenforceable?
Anthony Losquadro
Consumers Security Group Inc
Brooklyn, NY
*************************
Response
*************************
This seemingly simple question is really quite complex and the answer is as different as the numerous scenarios where the "claim the contract is unenforceable" arises.
Let's set the parameters of the question presented:
Scenario one is where the question is not signed by the subscriber. The quick answer might be that an unsigned contract is not enforceable. Certainly that would be the first claimed defense by the Subscriber if you tried to sue to collect on the contract. But the Subscriber may not be raising the claim that the contract is unsigned as a defense to your action. How about if the Subscriber sues you for a loss? The Subscriber doesn't even mention a written contract in its lawsuit; you have to claim there is a contract so you can rely on the protective provisions in that contract, including the exculpatory clause, among others. In either case the burden of proving that there is a written contract that governs the relationship and your services is going to land on your lap sooner or later, and that's because the contract is not signed by the Subscriber.
But the "facts" that will be testified to can change the answer. For example, what if a written contract was negotiated by you and the Subscriber, passed back and forth for changes in wording. As the contract is being negotiated you [stupidly] begin performance and actually complete the installation, maybe taking dumb to a higher level by activating monitoring. A loss occurs, the Subscriber [or its insurance carrier] sues you and the Monitoring Center [who promptly tenders the defense to you under its Indemnity Provision in the Dealer Contract]. You claim the unsigned contract is in fact the "deal"; your Subscriber claims the contract was never finalized and is not enforceable.
You may be able to build a convincing case that the Subscriber did agree to a final version by, at some point during negotiations, encouraging you or even permitting you, to begin performance of the contract; maybe the Subscriber even made payments as prescribed by the contract. Maybe the Subscriber referred to the unsigned contract during or after you started performance and before the loss occurred insisting that you adhere to its requirements.
Scenario two: You do the work and then produce the contract, which the Subscriber won't sign. You have no contract, period.
Scenario three: The contract is signed but the Subscriber claims the person signing had no authority. This comes up a lot. The Subscriber will have to burden of showing that the person had no authority, though you will also have a burden as the proof shifts the burden back and forth. You produce the signed contract. Subscriber says it was signed by someone without authority. Now you have to try and prove the person had actual or apparent authority. If the person signed with a title of "officer" the burden will then shift back to the Subscriber to try show the person had no title or it was a title with no authority, and you knew it. This is very fact sensitive issue that requires a few separate articles.
Scenario four: Is the Subscriber commercial or residential? A sympathetic witness? Or are you a particularly poor witness? Have you started the job? Any provable communication between you and the Subscriber regarding the deal? If you haven't started the job and there is no written contract then that is the end of the issue; no contract no deal. Because you should never do an alarm, security or fire job without a contract this should not become an issue.
If your Subscriber hasn't signed an All in One you need to keep this article in your back pocket.
***************************
ISC schedule
*****************
I’ll be at ISC in July and we are now scheduling private meetings and participation in round table discussions, topics and guest speakers TBA. Time for private meetings are limited so please reach out to Stacy Spector, Esq at 516 987 8428 or SSpector@Kirschenbaumesq.com. Concierge Clients with appointments are all set.
******************
To order up to date Standard Form Alarm / Security / Fire and related Agreements, click here: www.alarmcontracts.com
*************************
CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY
You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
***********************
NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles
***********************
THE ALARM EXCHANGE
This area is reserved for alarm classifieds, alarm company announcements, solicitations, offers, etc.
There is no charge to post a listing here.Include your contact information, phone, email and web site. If you would like to submit a post, please send an email to ken@kirschenbaumesq.com. To create a reciprocal link to our website, click here.
************************************************
Getting on our Email List / Email Articles archived:
Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com
**************************
Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
|
