An Agreement is a Negotiated Contract
An agreement is a contract with a more pleasant sounding name. This form of negotiated document has a more political tone than the legal term contract. I have been drafting a lot of paralegal settlement agreements and personal service contracts lately. Therefore I am taking time this Sunday afternoon to write an article about agreements. I first learned about agreements and contracts by typing them as a legal secretary in entertainment law firms in Century City and Downtown Los Angeles.
The word agreement generally refers to a negotiated contract, as opposed to an adhesion contract. An adhesion contract is a form contract printed on the back of a Pep Boys or other service invoice. The contract is adhered to the automotive service invoice and the person obtaining services must adhere to the contract as it is written. There is no negotiation of the adhesion contract on the back of a mobile communications bill of sale for a smart phone.
An Agreement is a Negotiated Contract
An gentleman’s agreement is not enforceable by law. An agreement that contains the elements of a legal contract is enforceable in a court of law. A well negotiated stipulated contract signed by two opposing parties in a lawsuit may be enforced by the plaintiff filing a motion to enforce stipulated agreement.
Yesterday I wrote an article in an attempt to alleviate a problem that two potential clients had last week. They both had a barely legible stipulation that was filled out by hand. The had both filed motions to enforce settlement agreement that were rejected by the court. The moral of the story is to have a paralegal, legal document assistant, or litigation paralegal type out your court forms so that they will not be rejected.
Elements of an Agreement
Mutuality of Obligation.
Competency and Capacity.
Contract Formation Under the U.C.C.
The first contract I ever drafted was as a film student at Cal State Northridge. There was a model contract for actors in my film business textbook. The sample agreement gave the actor $1.00 in consideration in order to be a legally enforceable contract. That simple form agreement and its $1.00 consideration was my introduction to the legal aspect of the entertainment business. In the movie business the legal departments are called business and legal affairs. When I started working as an administrative assistant word processing contracts I knew I was going to go more in that direction than pure film and music production.
An entertainment industry agreement often documents the give and take process of the negotiation, as well as the standard of performance required and expected. A film production agreement may have more subtle nuances that a real estate financing contract.
Settlements are created by agreement rather than contract. Stipulated settlement agreements are often signed in courthouse hallways on the eve of trial. A good litigation paralegal can draft a settlement and release document that can be modified on the courthouse steps by word processing two or more versions. One with the dollar amount the client wants, one with the dollar amount the opposing party wants, and one settlement form with blank spaces where the negotiated amounts will finally be decided upon at a later date.
A good paralegal is flexible with drafting and then printing, faxing or emailing different versions of any given settlement and release legal document. Different versions of agreements are managed by using the strike-through and red-lining features of word processing programs such as Word and WordPerfect. Drafting different ongoing edits of agreements keeps a lot of legal secretaries busy with word processing. And of course typing stipulated settlement agreements: