7 ms·

There are a couple of techniques that I have used in the past that have worked well. First, don't edit the proposed contract itself. Instead, add a rider that

by ccleve 4y ago

There are a couple of techniques that I have used in the past that have worked well. First, don't edit the proposed contract itself. Instead, add a rider that specifically overrides the provisions you don't like. Something like "Intellectual Property. Work produced by employee shall be considered work-for-hire. 'Work" is defined as..." Then add a line to the bottom of the rider that says "If any portion of this rider is in conflict with the main contract, the terms of the rider will override the terms of the contract." The benefit of this approach is that you avoid the back-and-forth niggling over particular words in the main contract, and you often overcome the other party's resistance to changing the language their lawyers said had to be there. It's stupid, but it works. The second technique is simply to say, "this contract isn't large enough to justify these provisions. If you would like to bump the contract, we can talk. Otherwise, no." This has worked for me in negotiating software licenses. I haven't tried it in an employment situation. It works because it forces the other side to acknowledge that their demands have costs, and they can have what they want only if they pay for it. They never do. I am not a lawyer. Heed this advice at your own risk.

willhinsa 4y ago
This sounds like great advice. Thank you for the ideas!
hodgesrm 4y ago
#2 is absolutely great. It's particularly useful to justify limitations of liability.
- deleted 4y ago
  [deleted]
Buttons840 4y ago
I'm not a lawyer, and don't know how the first suggestion would work with contracts that say things like "this represents the entire contract, any additions or addendums are void". If the main portion of the contract says "all additions are invalid", and an addition says "this addition overrides the main contract", which one wins?
- ohyoutravel 4y ago
  This is called an Integration Clause and is meant to basically remove extra outside agreements from being considered, such as an additional verbal agreement not reflected in the contract language itself. Riders are considered part of the contract bell and exist before signing the entire contract, and are covered by the integration clause as part of the whole contract.
  - thaumasiotes 4y ago
    > Riders are considered part of the contract bell Bell?
    - ohyoutravel 4y ago
      Sorry looks like an autocorrect artifact that I now cannot edit. Please strike the word in your mind as you read the sentence. :)
      - zippergz 4y ago
        I don't know why I found this so funny, but it gave me a real laugh this evening.
        thaumasiotes 4y ago
        The Language Instinct, in one section, gives some examples of ways in which an English sentence can be ungrammatical that people nevertheless rarely think of when they think about grammatical mistakes. One of my favorites was "This sentence has cabbage six words". It's accurate! It's... almost well-formed! You have to fix "This sentence has six words" somehow, right?
        teddyh 4y ago
        This sentence has cabbage and seven words.
        4y ago
TYPE_FASTER 4y ago
I have used tactic #2 successfully to get indemnity clauses removed.
NSMutableSet 4y ago
This feels like a good opportunity to tell (or remind) people that something on a rental lease isn't binding just because you signed it, and signing a lease entitles you to tenant privileges even if the lease does not mention them. I did not know these things before the pandemic, and I think the vast majority of people don't, even landlords themselves. There is a difference between what is written on the lease, and what can actually be enforced. The lease is not just one giant legal document. It's a series of hundreds or even thousands of individual components. Let me give you my real-life example: A few years ago, I signed a lease for a rental in California. Two things (clauses? not sure what the legal term is) in the lease are the key points for my anecdote: - A lease break fee equal to half a month of rent - Something about tenants being responsible for any legal fees incurred by the landlord/property owner I broke my lease, and the half month of rent was taken out of my deposit. I moved out a day early. My landlord had immediately found a new tenant who wanted to move in that day, so it worked out for both of us. Then my landlord did two things which really upset me and led to me spending ~20 hours over the next month or two reading about real estate laws and consulting multiple lawyers. - He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit. - He did not refund my deposit for nearly a month. When he did, it was $150 short of the reduced amount that I had expected. He didn't have an explanation for why, and wouldn't send it. This led me to lots of googling, and discovery of the following: 1. The idea of a "lease break fee" does not exist in California landlord/tenant laws. It is not legally enforceable. If a lease has one, it doesn't actually mean anything. If I had broken my lease without the landlord's permission, he would not have been entitled to any damages, since he filled the vacancy immediately at an equal or greater monthly rate. 2. Landlords must return a portion of the security deposit within 21 days, with itemizations and deductions. If nothing is returned within 21 days, they must return the full amount, even if deductions are justified. If the matter goes to court, the concept of "treble damages" comes into play. A tenant could get up to 3x their deposit back, depending on how the judge feels (probably a gross oversimplification of small claims, but maybe not). 3. The clause about being responsible for legal fees actually goes both ways. My landlord would have been responsible for my legal fees on top of treble damages if we went to court. There is no way to know this based on just reading the contract, and not having an understanding of laws as they are on the books AND legal precedents for prior similar cases in California. My landlord did not budge on returning my money when I texted him summaries of the above and links to evidence. He did budge after receiving a letter from a lawyer explaining everything in a more threatening tone. I was ultimately not out anything but time, since I have a legal plan that I pay for on an annual basis. This was the perfect situation to use it, but it was still more work. I do want to note something about the legal fees clause. I am pretty sure I am the first tenant who ever pushed back on it to my landlord. I don't know what the term for this is, but that clause has a very strong implication. At first glance, it seems to say "even if you're in the right, if you take me (the landlord) to court, you will have to pay for my lawyer, whether I win or lose". This is what I thought it meant, and I wonder how many tenants who have been wronged in the past see a clause like that, and it just eliminates any ideas they may have about trying to enforce their tenant rights because they see it as financially impossible. If I had to pay out of pocket for lawyer consultations and the letter, it wouldn't have really been worth it either. I would have roughly broke even. I would have done it anyways, though. I hope my former landlord will get deposits back to people on time in the future. Though I suppose he might not be willing to let people break their leases anymore, either. I'm pretty sure he was overcharging on utilities, but I didn't push it at the time. I've been considering reporting him to the IRS because he illegally declared the home as his primary residence while not residing in it, which I found out from the title report. I'm not sure if anything would come out of it. I would bet a limb that he wasn't reporting any of his rental income. Which leads me to a final thought: leases in California primarily benefit the tenant. You should never be afraid to break one IF the following is true: you know the landlord will be able to fill the vacancy if they put actual effort into it (they will need to prove as such to collect from you if they want to be lazy or spiteful), and the amount of time and money you would potentially spend in the worst case is less than whatever you would be responsible for in a scenario where they don't fill your vacancy, and they convince the judge that they tried really hard and they just couldn't do it (unlikely).
graderjs 4y ago
This is great advice. Thank you! I wish I knew this when I was doing the same thing, entered into the death spiral of back and forth over the contract language....

by ccleve 4y ago

willhinsa 4y ago

This sounds like great advice. Thank you for the ideas!

hodgesrm 4y ago

#2 is absolutely great. It's particularly useful to justify limitations of liability.

deleted 4y ago
[deleted]

Buttons840 4y ago

I'm not a lawyer, and don't know how the first suggestion would work with contracts that say things like "this represents the entire contract, any additions or addendums are void". If the main portion of the contract says "all additions are invalid", and an addition says "this addition overrides the main contract", which one wins?

ohyoutravel 4y ago
This is called an Integration Clause and is meant to basically remove extra outside agreements from being considered, such as an additional verbal agreement not reflected in the contract language itself. Riders are considered part of the contract bell and exist before signing the entire contract, and are covered by the integration clause as part of the whole contract.
- thaumasiotes 4y ago
  > Riders are considered part of the contract bell Bell?
  - ohyoutravel 4y ago
    Sorry looks like an autocorrect artifact that I now cannot edit. Please strike the word in your mind as you read the sentence. :)
    - zippergz 4y ago
      I don't know why I found this so funny, but it gave me a real laugh this evening.
      - thaumasiotes 4y ago
        The Language Instinct, in one section, gives some examples of ways in which an English sentence can be ungrammatical that people nevertheless rarely think of when they think about grammatical mistakes. One of my favorites was "This sentence has cabbage six words". It's accurate! It's... almost well-formed! You have to fix "This sentence has six words" somehow, right?
        teddyh 4y ago
        This sentence has cabbage and seven words.
        4y ago

TYPE_FASTER 4y ago

I have used tactic #2 successfully to get indemnity clauses removed.

NSMutableSet 4y ago

This feels like a good opportunity to tell (or remind) people that something on a rental lease isn't binding just because you signed it, and signing a lease entitles you to tenant privileges even if the lease does not mention them. I did not know these things before the pandemic, and I think the vast majority of people don't, even landlords themselves. There is a difference between what is written on the lease, and what can actually be enforced. The lease is not just one giant legal document. It's a series of hundreds or even thousands of individual components. Let me give you my real-life example: A few years ago, I signed a lease for a rental in California. Two things (clauses? not sure what the legal term is) in the lease are the key points for my anecdote: - A lease break fee equal to half a month of rent - Something about tenants being responsible for any legal fees incurred by the landlord/property owner I broke my lease, and the half month of rent was taken out of my deposit. I moved out a day early. My landlord had immediately found a new tenant who wanted to move in that day, so it worked out for both of us. Then my landlord did two things which really upset me and led to me spending ~20 hours over the next month or two reading about real estate laws and consulting multiple lawyers. - He charged me for lightbulbs that had been burnt out when I first moved in. I replaced them with my own, then swapped them back. I told him this, and he still took it out of my deposit. - He did not refund my deposit for nearly a month. When he did, it was $150 short of the reduced amount that I had expected. He didn't have an explanation for why, and wouldn't send it. This led me to lots of googling, and discovery of the following: 1. The idea of a "lease break fee" does not exist in California landlord/tenant laws. It is not legally enforceable. If a lease has one, it doesn't actually mean anything. If I had broken my lease without the landlord's permission, he would not have been entitled to any damages, since he filled the vacancy immediately at an equal or greater monthly rate. 2. Landlords must return a portion of the security deposit within 21 days, with itemizations and deductions. If nothing is returned within 21 days, they must return the full amount, even if deductions are justified. If the matter goes to court, the concept of "treble damages" comes into play. A tenant could get up to 3x their deposit back, depending on how the judge feels (probably a gross oversimplification of small claims, but maybe not). 3. The clause about being responsible for legal fees actually goes both ways. My landlord would have been responsible for my legal fees on top of treble damages if we went to court. There is no way to know this based on just reading the contract, and not having an understanding of laws as they are on the books AND legal precedents for prior similar cases in California. My landlord did not budge on returning my money when I texted him summaries of the above and links to evidence. He did budge after receiving a letter from a lawyer explaining everything in a more threatening tone. I was ultimately not out anything but time, since I have a legal plan that I pay for on an annual basis. This was the perfect situation to use it, but it was still more work. I do want to note something about the legal fees clause. I am pretty sure I am the first tenant who ever pushed back on it to my landlord. I don't know what the term for this is, but that clause has a very strong implication. At first glance, it seems to say "even if you're in the right, if you take me (the landlord) to court, you will have to pay for my lawyer, whether I win or lose". This is what I thought it meant, and I wonder how many tenants who have been wronged in the past see a clause like that, and it just eliminates any ideas they may have about trying to enforce their tenant rights because they see it as financially impossible. If I had to pay out of pocket for lawyer consultations and the letter, it wouldn't have really been worth it either. I would have roughly broke even. I would have done it anyways, though. I hope my former landlord will get deposits back to people on time in the future. Though I suppose he might not be willing to let people break their leases anymore, either. I'm pretty sure he was overcharging on utilities, but I didn't push it at the time. I've been considering reporting him to the IRS because he illegally declared the home as his primary residence while not residing in it, which I found out from the title report. I'm not sure if anything would come out of it. I would bet a limb that he wasn't reporting any of his rental income. Which leads me to a final thought: leases in California primarily benefit the tenant. You should never be afraid to break one IF the following is true: you know the landlord will be able to fill the vacancy if they put actual effort into it (they will need to prove as such to collect from you if they want to be lazy or spiteful), and the amount of time and money you would potentially spend in the worst case is less than whatever you would be responsible for in a scenario where they don't fill your vacancy, and they convince the judge that they tried really hard and they just couldn't do it (unlikely).

graderjs 4y ago

This is great advice. Thank you! I wish I knew this when I was doing the same thing, entered into the death spiral of back and forth over the contract language....