BREACH OF CONTRACT
“Undertake not what you cannot perform but be careful to keep your promise.” – George Washington
The Contract has bound men to their word since the dawn of our existence. A contract can be created by words, hand shakes, signatures, lengthy documents, implicit understandings, or the operation of the law.
Our long legal tradition of contract law does not rely upon a faulty hope for a utopian future where everyone gets along. Quite the opposite: our law acknowledges that humans will be humans; they will disagree; they will argue over details, they will too often fail to live up to their obligations, or just screw something up. And thankfully, we have the courts to remedy such situations rather than previously debunked methods (e.g. duels, trial by combat, Mafioso visits, etc.).
The judicial enforcement of a contract’s terms is one of the fundamental underpinnings of our nation’s strong civil law system. It allows our economy to perform as strongly as it has for as long as it has because contracting parties can be confident that their contracts will be enforced. With that confidence, parties are more likely to contract for good and services, which in turn leads to more economic activity and, thus, prosperity. And how best to ensure free market capitalism than through litigation than forces everyone to play by the rules?
COMMERCIAL COLLECTION LITIGATION
“Creditors have better memories than debtors.” — Benjamin Franklin
Timely payment of invoices is the fuel injected into the company’s tank. It is all too easy for clients and customers to ask for services and goods, but not as often easy to tender payment. But the process of collecting outstanding debts can be like an unmarked mine field. Should the collection of this debt endanger an otherwise strong relationship with a long lasting client? How can a lawsuit play out to a company’s financial favor? How can attorney fees be minimized to justify the retrieval of a finite amount of money owed? What is the right message to be sent through litigation, especially as the frequency of suits increases: easy going, but lenient, or tough and not to be underpaid?
Having worked closely with dozens of local companies, out of state entities, non-profits, and foreign firms, we know that there is no one-size-fits-all solution. We know our clients may wish to focus more on earning new income, rather than chasing after unpaid invoices. We know how to work with businessmen and women to find the balance that is right for them. Whether the approach is aggressive, diplomatic, or cooperative, we will be able to shift gears accordingly.
We have been members of The American Lawyers Quarterly law list for several years.
“Neither a borrower nor a lender be; for loan doth oft lose both itself and friend, and borrowing dulls the edge of husbandry.”
— William Shakespeare, Hamlet.
“It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” — Adam Smith
It is said that partnerships are, proportionally, the most successful type of business ventures people can hope for. But with the added potential for success comes an anticipated risk of the partners disagreeing, falling out of grace with each other, and just acting illegally.
It is our hope to avoid litigation whenever possible. If you come to us, we will first look at what has been and what can be done to salvage the partnership so that the business can go on doing what it was set out to do. It is a shame for a partnership to fall apart for any other reason besides the failure to earn a sufficient income. But, then again, sometimes a fight just cannot be avoided. We will be ready to do our part to fight when all alternatives are exhausted.
Partners will always have either an explicit contract or agreement between them, internal company bylaws, or at least Texas law to define the relationship. When one partner breaches that agreement, ignores the bylaws, or flouts the law, action must be taken. The other partner must move immediately to protect his interests. Was the violation a simple breach of contract or something more sinister? Partners have a strict fiduciary duty to each other. They owe one and other a strict duty of good faith and candor. They cannot use the relationship to their personal benefit at the expense of the other partner.
Again, our goal is to get the business back to doing business. But when that cannot happen, we’ll take the matter to court to settle the problem.
UCC / SALES OF GOODS
Almost all businesses have contracts with customers, suppliers and distributors. For businesses involved in the sale of goods, the Uniform Commercial Code (UCC) is the overarching legal framework. Many contracts contain alternative dispute resolution clauses, limiting a client’s procedural remedies to conciliation, mediation or arbitration.
Litigation arising from these particular relationships and agreements requires a particular understanding of the law. And while litigation might be more complex, it is no less necessary when one party wrongs another under the legal framework of the UCC. We will fight to help you or your business force the wrongdoer comply with the terms of the contract or pay for the damage they caused.
DECEPTIVE TRADE PRACTICES ACT (DTPA)
Texas state law has afforded an extra level of protection for Texas consumers of goods and products. Sellers and providers of such goods and services are held to a higher standard of behavior in their interactions with their customers and clients. Wronged customers can sue the seller/provider for breaching the contract and for violation of the DTPA. Special remedies are afforded such as making the wronged customer whole and granting him a special statutory penalty award, which amounts to three times the amount of money actually lost by the customer.
Banned deceptive practices range in nature. Some examples are: forbidding a seller of goods from lying about the make or quality of a product; forbidding a mechanic from exaggerating the needed repairs and their costs; forbidding a mortgage company from adding multiple fees not originally disclosed to the client mortgagee. Many more deceptive trade practices are prohibited. If you are a customer or client of a business that has wronged you in some manner, you should immediately contact us for an appointment to discuss the potential violation committed.