Lets say I’m just sitting on a bench when a guy approaches me and says he wants to give me a house, I mean wow right for real?
Sure he says just come to my lawyer’s office and we will sign the papers.
I go and his lawyer presents me with a giant wad of a contract, I can’t tell whether I’m accepting a house or signing myself into slavery in the salt mines. I’m also unable to pay for my own lawyer to look over the contract.
If I flat out ask what exactly am I signing here, what is this contract is the lawyer obligated to tell me what the contract is for? Or can the lawyer in fact even lie outright and claim a total falsehood like his client?
I don’t know about an outright misrepresentation, but in contract law there is something called the parole evidence rule that states basically, any oral agreement not reflected in the contract is not enforceable. Of course there are exceptions which I won’t get into. But the court will likely assume that you had the chance to read the contract for yourself or lieu of that, just not enter into the agreement. It’s not like there was any duress of any kind.
There is also the contra proferentum rule: any ambiguities in the contract will be interpreted in favour of the party who did not draft it.
It would seem to me that ethically, a lawyer who drafts a contract for Party A, then tries to blur/obfuscate/fudge the terms when explaining them to Party B, does the profession a disservice. Regardless, the best approach for Party B is to always engage a different lawyer to explain to B just what the contract means.
That’s true. It’s not usually phrased that way, but still accurate.
The OP was talking about representations inconsistent with the contract so I thought parole evidence was more applicable.
The ethics point is a good one. Regardless of what may be permissible, an attorney still has to worry about running afoul of the ethics rules in his state and those can be quite a bit more demanding than any legal standard.
I assume there’s a reasonabless issue; if the person is presented with a 50-page contract in legalese, and told sign within 5 minutes or else, not given the opportunity to read and understand the contract…
Then the court would not consider that he had consented.
IIRC the key to a contract (help, real lawyers) is the consent.
If the person is told and assumes he is consenting to something completely different than what he is signing, or some nasty “pound of flesh” is slipped into page 20, would the contract actually be binding?
If it’s patently obvious the fellow did not (or could not) read or understand the contract, would it be binding?
If the terms were totally unreasonable, would it be binding?
(Assuming the encounter were videotaped or recorded, so there’s no dispute what the lawyer said, would that matter? I assume a lawyer has a duty not to outright lie?)
If “I’m giving you a house, sign here” would that even be a contract? Wouldn’t it at least require consideration, “here’s a house for $1”?
The “Parole Evidence Rule” mentioned suggests “subsequent” promised? Subsequent to signing? Subsequent to drafting the paper?
I recall reading about cases where a clause might be turfed by the judge because “evidence indicates that is not what the party thought he was agreeing to”, but maybe that’s just interpretation of the fine points.
I’m pretty rusty and could be wrong about this, but I don’t think it’s just subsequent agreements. In fact, you would probably have a stronger case for those for reasons I’m too lazy to get into.
Or else what? IANAL, but I thought the courts were fairly sticky about “you signed it, therefore you agreed to it”. If you were somehow being forced into signing something then you could argue that you did it under duress so you weren’t bound by it, but if duress isn’t involved, do courts care that you weren’t given the opportunity to study the contract (why did you agree to it then?)
My OP used figures of speech and a vague hypothetical, really the key of what I was asking is whether party A’s lawyer who has drawn up a contract must be truthful about the contract’s purpose and contents if party B asks.
I realize how unwise an action that would be whether the answer is yes or no.
It’s not a simple question because what you’re really asking is, ‘what are the consequences if he isn’t?’ And that can mean consequences for him, for you, for the enforceability of the contract, etc.
There’s also the issue of proof. If all you’ve got is his testimony and yours and they contradict each other, then you’ve got jack.
Doesn’t this happen all the time with EULAs, though? I read somewhere recently that for a person to actually read through all of the end user license agreements he or she routinely clicks on to access software and web sites, it would require several months of eight-hour working days.
Courts treat agreements that aren’t made between parties who are in more or less comparable bargaining positions differently, but it depends on the law of the particular state.
Most likely, unless there is something particularly objectionable you’ll be held to a EULA. But I know in my state, there used to be boiler plate language on rental agreements that would never have been enforced if it had gone before a court. Unfortunately I can’t think of any examples at the moment.
Two legal doctrines here, both mutually exclusive:
-“undue advantage” the lawyer pushing you to sign knows much more than you do-he therefore has an advantage over you (in pulling the wool over your eyes)-
-“Duty to disclose” if you ask him a question, he is bound to give a truthful answer-as in “Counselor…will you please explain to me why clause 5 dictates that if I miss ONE payment, I lose my entire equity in the property”? (Answer): “Yes…but don’t worry about that, you will be fine”
That is why contracts contain miles of fine print, in obscure leagl terminalogy-you have to hire another lawyer to decipher it for you.
That was one of my questions. Assuming “what was said” is not in dispute, does complete (verbal) misrepresentation of contents of the paper by the other party’s lawyer either (a) nullify the contract or (b) create fraud?
I.e. does the court adhere to a strict “you signed it, tough bananas” approach, or is fair dealing an essential party of a contract? IIRC, the contract is the meeting of minds (IANAL) the paper simply makes it specific. (hence, verbal contracts, “not worth the paper they’re wrtitten on”) If the minds were two ships passing in the night, and the paper signed was a switcheroo, is there a contract? How is that different from the old trick " sign the second copy poking out under the top copy" when a person had no intent to agree to such a situation?
In such scenarios in fiction, the tricksters rarely try the gambit “I lied to him and he signed without reading” in court.
I can see the huge difference between “this is what you agreed to, you just didn’t read the fine print about payments due” versus “you thought you were getting a free house and instead signed away all your worldly possessions”.
The op raises questions about fraud in the inducement and/or possibly fraud in the factum. Someone else will have to explain further, I’m on my phone at a truck stop.
Your OP assumes that the lawyer for A is required to give an answer to B. The answer to that is “no”. Lawyer A works for A, not B, and is fully entitled to say to B: “I am not your lawyer and cannot give you any legal advice about the meaning of this contract. I work solely for A. If you need legal advice about the meaning of this contract, I would suggest you seek independent legal advice, from your own solicitor.”
-“Duty to disclose” if you ask him a question, he is bound to give a truthful answer-as in “Counselor..will you please explain to me why clause 5 dictates that if I miss ONE payment, I lose my entire equity in the property”? (Answer): “Yes..but don’t worry about that, you will be fine”
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Again, this answer assumes that Lawyer A has to answer B’s question. That’s not correct.
There are three different answers to the latter question, but they all basically boil down to “no”. The answer to the first question is “generally no”, but if neither the lawyer nor his client discloses some material fact about the contract you may be entitled to rescind it.
It’s the *parol *evidence rule. You’ll definitely want your own lawyer for any discussion involving parole evidence.
