Promissory restitution is a legal idea that permits you to recover compensation for services rendered even if no contract was formed. To use this theory, two things must be established.
First, you must give a benefit to another that was not paid for. Second, the other party must expressly promise to pay after receiving the benefit. If the other party then declines to pay, you can sue them for payment under promissory restitution.
What Is Contract Drafting?
To fully understand the concept of contract drafting, it may be useful to know what a contract is first. A contract is typically defined as a legally binding agreement between parties that acknowledges the rights and duties governing the arrangement. Contracts can be created through writing or created by oral agreement. For contract drafting, this only refers to written agreements.
Contract drafting is the action of writing down the terms and conditions of an agreement. The parties to a contract may go through several drafts and negotiation sessions before the official contract is completed. Contract drafting aims to make a legally binding document in writing that is precise, succinct, and as close to the parties’ intentions as possible.
The drafting process can be very beneficial for contractual agreements. One advantage of the process is that it permits the parties to discuss the terms of the contract before it becomes binding. This can help stop legal conflicts over the contract from arising in the future. If a legal conflict occurs, it can also prove the parties’ original intentions and responsibilities.
Finally, contract drafting can ensure that the parties comprehend their respective responsibilities if any issues emerge while they satisfy the contract. This is especially true in situations where the contract involves complex conditions.
How Are Contracts Drafted?
Although any person may draft contracts, it is often recommended that a lawyer draft and review the final terms to ensure that the contract is legally accurate and binding. The parties to a contract will usually be the ones to decide how a contract will be drafted, but it can also hinge on the type of contract being created.
For example, employment contracts contain particular provisions and specific terms that differ from the language found in confidentiality agreements.
Generally speaking, however, most contracts follow a basic format and include standard components, such as essential words that need to be defined, legalese that distinguishes the beginning or signals the end of a contract (e.g., a signature block), the privileges and duties of the parties, how the parties can terminate the agreement, general provisions, and some incorporate special clauses (e.g., insurance policies).
In addition, regardless of the type of agreement, all contracts must contain the following elements:
- An offer;
- The acceptance of that offer;
- Consideration (usually money);
- The contract must identify its parties, and those parties must possess the legal capacity to agree;
- The subject matter of the contract must be legal (e.g., cannot form a contract to employ an assassin);
- There must be a mutual agreement between the parties; and
- The parties must have a mutual understanding of their rights and duties under the contract.
Many contracts also contain specific terms and conditions. Some standard contract drafting terms and conditions include:
- Force majeure;
- Arbitration clause;
- Choice of law and forum selection;
- Time is of the essence clause;
- Severability; and
- Liquidated damages clause.
The above terms and conditions all pertain to either events that trigger conditional consequences, duties that the parties are legally obligated to perform, or responsibilities that the parties must abstain from, or they risk breaching the contract.
What Is Contract Review?
Legal contract review refers to when a party to a contract hires an attorney to check the terms and conditions of their agreement. It is strongly suggested that an attorney conducts this examination before a party signs the contract. An attorney should also be conferred to study a contract when there is a legal conflict. An attorney will know what to look for and understand exactly how to review a contract.
Having an attorney check the contract can protect a party against future or current legal disputes in both scenarios. This is because the contract is typically the most critical piece of evidence in a legal issue. It is usually the first document consulted, regardless of whether the issue is resolved before a court or outside a courtroom.
During a contract review, an attorney will look for specific things. These include whether the contract is plainly written and provides clear terms, contains straightforward language, or defines technical jargon and that it conforms with the law. An attorney can also ensure that a party comprehends their responsibilities and burdens under the contract and can modify or amend conditions that the party did not intend to include in the contract.
What Are Some Everyday Examples of Promissory Restitution at Work?
Promissory restitution is a valid legal claim, although not all courts recognize it. Here are some examples:
- Bankruptcy: When individuals file for bankruptcy, their debts are often discharged. Yet, some courts hold that expressly promising to pay off certain debts before filing for bankruptcy will not discharge the debt. This debt can be recovered based on promissory restitution.
- Material Benefit: Regardless of the circumstances, many states permit a promissory restitution claim if a person has rendered a material benefit to another. If the individual who obtained the benefit later promises to pay for it, the promise is legally enforceable. What is considered a material benefit will depend on the situation.
- Saving Someone’s Life: This is a material benefit to the rescued person. Nevertheless, you can only recover under promissory restitution if the other individual offers to compensate you. Otherwise, the saved individual has no legal obligation to pay you anything despite your valiant efforts.
What Is Consumer Bankruptcy?
Bankruptcy is a legal proceeding initiated when an individual or business cannot meet its monetary commitments. There are various types of bankruptcy, all under federal law. Consumer bankruptcy is filed when individuals cannot pay back their debts for personal necessities.
Once the bankruptcy proceeding is finished, the person is no longer liable for their debts. The bankruptcy court will enter a discharge order releasing the person from the debts. The person then has a clean financial slate, but the bankruptcy will stay on their credit report for up to ten years.
Bankruptcy can have endless consequences. It should only be used as a final resort during extreme financial hardship. There are many considerations an individual should review before filing for bankruptcy.
How Likely Will a Promissory Restitution Claim Work in Court?
Courts will vary on whether they will enforce a promise to pay based on promissory restitution. Most courts would permit recovery if a material benefit were given to the individual making the promise to pay. Yet, some courts hold that such promises are moral obligations with no legal consequence.
How Can an Attorney Help Me?
Promissory restitution is strictly a legal theory that is not commonly used. If you believe you have a promissory restitution claim, you should consult an experienced contract attorney to pursue the claim. Promissory restitution is not recognized in all courts, and an experienced lawyer will be able to tell your chances of a successful claim.