Really Stupid Question Forum

[Anonymous User]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

[Anonymous User]

address it quickly and move on? if there is a challenge then you can go into detail in a later memo... if you feel like its something you should do now write some bullet points on the issue now for later use?

anyway I'm interning for a COA and I felt the same way about writing memos. We come out of LS feeling like we need to address every friggin issue.. thats not how it works in the real world.

Disclaimer: I've only limited exp with a COA

[ymmv]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I love that I too have no idea how the fuck a real contract works. Thank god for law school.

[PepperJack]

Depends on your instructions. Normally in bigger firms, it will just be one component of the contract. If it's something as general as all clauses that can be challenged, it depends on style. But if there's multiple stages that may be challenged, it's not bad to list all elements of a legally enforceable contract at the outset.

My understanding (and now hope since I have been doing this) is the memo is just for an associate who will adapt it into their own words for a partner whose writing style they know. In this sense, all that really matters is the associate understanding your points, and tracking your sources. The review of your work by people who may not know your assignment is what complicates things.

[Anonymous User]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I love that I too have no idea how the fuck a real contract works. Thank god for law school.

How does a real contract work?

Thanks to everyone else who provided useful information.

[mvp99]

what the fck is a contract

[3|ink]

what the fck is a contract

It's like, one of those things man.

[ymmv]

what the fck is a contract

Alls I know is it involves a meeting of the minds, a battle of the forms, and ultimately catastrophic damages, all governed by some arcane magical code. Sounds like some kickass wizarding shit.

[wert3813]

what the fck is a contract

Bold use of anon.

[heavoldgotjuice]

what the fck is a contract

Alls I know is it involves a meeting of the minds, a battle of the forms, and ultimately catastrophic damages, all governed by some arcane magical code. Sounds like some kickass wizarding shit.

this is funny as shit to me

[NYSprague]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I swear I do not understand what you are asking.
Don't write a memo explaining that there was an offer and an acceptance unless you are summarizing the facts, which you should be...
If the issue is timeliness you don't have to explain every element of a contract in your analysis.

[Anonymous User]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I swear I do not understand what you are asking.
Don't write a memo explaining that there was an offer and an acceptance unless you are summarizing the facts, which you should be..

Obviously I have a factual background section. The question is how to treat questions with obvious answers like whether there was an offer. It's a signed and notarized contract.

Do I really need a section that goes like"

I. The Contract is Enforceable
An enforceable contract in [state] must have 1) an offer, 2) acceptance, 3)...
[Next paragraph]
The signed contract is evidence that an offer was made and accepted.

That just sounds so fucking dumb to me. There must be a better way.

Fuck law school for teaching me nothing.

[NYSprague]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I swear I do not understand what you are asking.
Don't write a memo explaining that there was an offer and an acceptance unless you are summarizing the facts, which you should be..

Obviously I have a factual background section. The question is how to treat questions with obvious answers like whether there was an offer. It's a signed and notarized contract.

Do I really need a section that goes like"

I. The Contract is Enforceable
An enforceable contract in [state] must have 1) an offer, 2) acceptance, 3)...
[Next paragraph]
The signed contract is evidence that an offer was made and accepted.

That just sounds so fucking dumb to me. There must be a better way.

Fuck law school for teaching me nothing.

It sounds dumb because it is.

Just write the issue you have and address that. Unless I'm misunderstanding.
The issue is timeliness and remedies, right? You aren't writing a trial brief?

[Anonymous User]

It sounds dumb because it is.

Just write the issue you have and address that. Unless I'm misunderstanding.
The issue is timeliness and remedies, right? You aren't writing a trial brief?

So you're basically saying that a memo should focus on the contentious issues? This is basically the exact opposite of what they taught in law school.

Either way I agree with every word you're saying and appreciate the advice.

[NYSprague]

It sounds dumb because it is.

Just write the issue you have and address that. Unless I'm misunderstanding.
The issue is timeliness and remedies, right? You aren't writing a trial brief?

So you're basically saying that a memo should focus on the contentious issues? This is basically the exact opposite of what they taught in law school.

Either way I agree with every word you're saying and appreciate the advice.

What was your assignment?
If someone gave me a memo that explained the basics of a contract I would be unhappy. Clients aren't paying for that stuff.
Unless you have a reason why it wouldn't be enforced or why it isn't valid, you don't have to dis
cuss basic contract law.

I'm still confused. Just write... issue: whether an action to enforce the contract is timely under [whatever statute controls that,if there is one.] And answer that. (Note: don't use those exact words, I have no idea what your actual assignment was.)

[Sup Kid]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I swear I do not understand what you are asking.
Don't write a memo explaining that there was an offer and an acceptance unless you are summarizing the facts, which you should be..

Obviously I have a factual background section. The question is how to treat questions with obvious answers like whether there was an offer. It's a signed and notarized contract.

Do I really need a section that goes like"

I. The Contract is Enforceable
An enforceable contract in [state] must have 1) an offer, 2) acceptance, 3)...
[Next paragraph]
The signed contract is evidence that an offer was made and accepted.

That just sounds so fucking dumb to me. There must be a better way.

Fuck law school for teaching me nothing.

First paragraph: The issue is.... [time-barred stuff]
Second paragraph: Background facts [a contract was entered into on ___ between ____, etc. If you start talking about offer and acceptance of a signed contract by both parties when the issue has to do about timing and not whether a contract exists, I'm going to laugh, take my red pen, and cross it ALL out.
Third paragraph: What the law on time-barred contracts is in your state.
Fourth paragraph: Apply law to facts (hint hint, paragraphs 2 and 3, intertwined together) and reach conclusion; add counterpoint/opposing view if necessary and say why it's incorrect.
Fifth paragraph: Short conclusion, if not already summed-up in fourth paragraph. Remember to ANSWER THE ISSUE (see first paragraph)

Aim for less than 5 pages unless law is very complex. If complex, still keep it under 10 pages. If memo is for client (as opposed to partner who will then talk to client) the shorter the better and the less legalese the better. Shorten facts/law paragraphs if for a client, to the extent possible.

[Anonymous User]

It sounds dumb because it is.

Just write the issue you have and address that. Unless I'm misunderstanding.
The issue is timeliness and remedies, right? You aren't writing a trial brief?

So you're basically saying that a memo should focus on the contentious issues? This is basically the exact opposite of what they taught in law school.

Either way I agree with every word you're saying and appreciate the advice.

What was your assignment?
If someone gave me a memo that explained the basics of a contract I would be unhappy. Clients aren't paying for that stuff.
Unless you have a reason why it wouldn't be enforced or why it isn't valid, you don't have to dis
cuss basic contract law.

I'm still confused. Just write... issue: whether an action to enforce the contract is timely under [whatever statute controls that,if there is one.]

They didn't specify the assignment. They just told me to look into the case and review our chances of success. They didn't say what the focus on. I found the timeliness issue on my own.

[Anonymous User]

First paragraph: The issue is.... [time-barred stuff]
Second paragraph: Background facts [a contract was entered into on ___ between ____, etc. If you start talking about offer and acceptance of a signed contract by both parties when the issue has to do about timing and not whether a contract exists, I'm going to laugh, take my red pen, and cross it ALL out.
Third paragraph: What the law on time-barred contracts is in your state.
Fourth paragraph: Apply law to facts (hint hint, paragraphs 2 and 3, intertwined together) and reach conclusion; add counterpoint/opposing view if necessary and say why it's incorrect.
Fifth paragraph: Short conclusion, if not already summed-up in fourth paragraph. Remember to ANSWER THE ISSUE (see first paragraph)

Aim for less than 5 pages unless law is very complex. If complex, still keep it under 10 pages. If memo is for client (as opposed to partner who will then talk to client) the shorter the better and the less legalese the better. Shorten facts/law paragraphs if for a client, to the extent possible.

Thanks this is solid advice.

[ymmv]

It sounds dumb because it is.

Just write the issue you have and address that. Unless I'm misunderstanding.
The issue is timeliness and remedies, right? You aren't writing a trial brief?

So you're basically saying that a memo should focus on the contentious issues? This is basically the exact opposite of what they taught in law school.

Either way I agree with every word you're saying and appreciate the advice.

What was your assignment?
If someone gave me a memo that explained the basics of a contract I would be unhappy. Clients aren't paying for that stuff.
Unless you have a reason why it wouldn't be enforced or why it isn't valid, you don't have to dis
cuss basic contract law.

I'm still confused. Just write... issue: whether an action to enforce the contract is timely under [whatever statute controls that,if there is one.]

They didn't specify the assignment. They just told me to look into the case and review our chances of success. They didn't say what the focus on. I found the timeliness issue on my own.

Yes because "review our chances of success" is the HEIGHT of ambiguity.
Are you sure you want to do this law thing?

[NYSprague]

So I'm writing a memo about a written contract my client wants enforced. There's very little chance that the enforceability of the contract will be challenged. The bigger issue is whether it is time-barred.

When preparing the memo, do I really need to go through the elements of a contract to establish 1) there was an offer, 2) etc. The contract was written so long ago. How the fuck am I supposed to know an offer was made? The client doesn't remember. It's a written fucking contract. It should be evidence of an offer on its own.

Here's a better way of putting it. Is the enforceability (or unenforceability) of a contract something we shouldn't even consider unless there are obvious defects? How the fuck does this shit work in the real world?

I swear I do not understand what you are asking.
Don't write a memo explaining that there was an offer and an acceptance unless you are summarizing the facts, which you should be..

Obviously I have a factual background section. The question is how to treat questions with obvious answers like whether there was an offer. It's a signed and notarized contract.

Do I really need a section that goes like"

I. The Contract is Enforceable
An enforceable contract in [state] must have 1) an offer, 2) acceptance, 3)...
[Next paragraph]
The signed contract is evidence that an offer was made and accepted.

That just sounds so fucking dumb to me. There must be a better way.

Fuck law school for teaching me nothing.

First paragraph: The issue is.... [time-barred stuff]
Second paragraph: Background facts [a contract was entered into on ___ between ____, etc. If you start talking about offer and acceptance of a signed contract by both parties when the issue has to do about timing and not whether a contract exists, I'm going to laugh, take my red pen, and cross it ALL out.
Third paragraph: What the law on time-barred contracts is in your state.
Fourth paragraph: Apply law to facts (hint hint, paragraphs 2 and 3, intertwined together) and reach conclusion; add counterpoint/opposing view if necessary and say why it's incorrect.
Fifth paragraph: Short conclusion, if not already summed-up in fourth paragraph. Remember to ANSWER THE ISSUE (see first paragraph)

Aim for less than 5 pages unless law is very complex. If complex, still keep it under 10 pages. If memo is for client (as opposed to partner who will then talk to client) the shorter the better and the less legalese the better. Shorten facts/law paragraphs if for a client, to the extent possible.

Great advice. I guess OP was more lost than I thought.
I usually had a short conclusion section between the issue and analysis sections of a memo. Maybe different firms have different styles.

[Anonymous User]

Yes because "review our chances of success" is the HEIGHT of ambiguity.
Are you sure you want to do this law thing?

Don't be dense. I was asked what the assignment was and I responded that they didn't ask me to focus on a particular topic. I'm not complaining that the assignment was ambiguous.

[smallfirmassociate]

If the partner asked you to write a memo about whether a contract is enforceable after a certain period of time, then he's already set the assumption that a contract exists. Roll with that, and at most--if it makes you feel better--briefly mention that for the sake of the memo you have assumed that the elements of contract formation are met, and this would be an area for further research if necessary.

Edit: It sounds like the assignment was more vague than that. In that case, explain in the memo why, as you stated in the OP, the contract formation is unlikely to be challenged. Just make a short paragraph with that information if you think it will be an elephant in the room. Only you have the file, so only you know which issues there are to spot. Based on the complexity of the case, the number of issues to spot, and the information that you know and don't know (and that you know you don't know, Cheney style), the memo could end up looking any number of ways.

[NYSprague]

Yes because "review our chances of success" is the HEIGHT of ambiguity.
Are you sure you want to do this law thing?

Don't be dense. I was asked what the assignment was and I responded that they didn't ask me to focus on a particular topic. I'm not complaining that the assignment was ambiguous.

Ok. So have you found cases where similar contracts have been enforced? Obviously you need to mention those. This should be the beginning see tion of the analysis with mention of any reason to distinguish them. (Generally, contracts like the one at question are upheld (citations) as long as the action is brought in a timely manner (and any other distinguishing facts if relevant.) The leading case held that [contract] was enforceable where plaintiff [blah blah blah] and the case was brought within [timeframe] of the breach.
In this case the action may not be timely because. (Cite cases dismissed for lack of timeliness]t
Follow with an explanation as to how lack of timeliness might be overcome.
You are trying to help solve a way for the client to get what they want. So come up with reasons lack of timeliness is or may be excused..illness or continual assurances from the other side. Have any required notices been given or waived or ignored?

Also, there a question of remedies available? Is it just damages, liquidated damages, specificp erformance. Does the other side have the right to cure? You should mention what they might collect.

Does the contract have any specific dispute resolution mechanisms in place?

__

I hope I have been clear. Don't just write about timeliness. You need to explain more about how similar cases are handled. But not more than one or twoleading cases, with cites to similar cases. It's late here and I'm sleeping to get up in 4 hours.

PM me if I can help. I don't want make it worse.

[banjo]

Not a practicing attorney, but I think you should spend a few sentences exploring whether there is a contract here.

-Was there a promise or set of promises?
-Was there a manifestation of mutual assent? Are the terms definite? Probably yes to both in a commercial contract.
-Was there consideration--did a party do or promise to do something it didn't have to do already?
-If there was no manifestation of mutual assent or no consideration, is there a contract under one of the exceptions (R2d 85-90, 94, 104 etc.)?
-Any other obvious problems?

Also, you said it's an old K--do you have all side agreements, amendments, etc. in front of you? Don't spin your wheels on this stuff, but just make sure there's nothing glaringly wrong.

[smallfirmassociate]

Not a practicing attorney, but I think you should spend a few sentences exploring whether there is a contract here.

-Was there a promise or set of promises?
-Was there a manifestation of mutual assent? Are the terms definite? Probably yes to both in a commercial contract.
-Was there consideration--did a party do or promise to do something it didn't have to do already?
-If there was no manifestation of mutual assent or no consideration, is there a contract under one of the exceptions (R2d 85-90, 94, 104 etc.)?
-Any other obvious problems?

Also, you said it's an old K--do you have all side agreements, amendments, etc. in front of you? Don't spin your wheels on this stuff, but just make sure there's nothing glaringly wrong.

Contract formation is so fact-intensive that, if it's disputed, it's unlikely to be resolved with any degree of confidence within a preliminary memo based on the likely limited info that TS has in his possession at this time (e.g. probably prior to discovery). I'd focus on issues that are more questions of law.