I had a contract for six months with 30 day advance cancellation notices. He failed to execute the contract but paid and complied with all aspects of the contract including multiple weekly calls as to status and strategy. Per the contract he would have had to notify me prior to 30 days ending 7/31. He failed to pay August and has not called since 7/29. Question is I know the termination notification clause and timeframe to notify of cancellation is legal as a lawyer drafted and reviewed. So, given he did not execute the agreement but adhered to the compensation payment and all other parts of the agreement for six months is his behavior of adherence to all aspects of the contract including daily and weekly calls make the termination and notification clauses valid given his actions? If so I assume since the remaining amt owed as of today is $10k since he failed to notify me and if indeed his actions adhering to all aspects of the agreement make the agreement enforceable that I should seek a claim of $10k in small claims court?
1 Answer from Attorneys
If he never signed the written contract, it's terms are irrelevant. The fact that he adhered to some or many of the same terms that were in your written agreement does not mean we can imply that he assented to the agreement as a whole. You had a choice not to perform until the written agreement was executed. You chose to perform anyway. And that's fine, but you don't get to now rely on the contract if things don't go as planned. This is not to say that you have no recourse. You may. But the facts need to be well understood.
If you need clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient.
Our firm is now referred by the American Bar Association (see under the New York section): http://www.americanbar.org/groups/delivery_legal_services/resources/programs_to_help_those_with_moderate_income.html
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.
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