Making sure the parties are properly named is another potential pitfall to be aware of. Companies often do business under names different from the legal name under which they are registered. For example, a company carrying on business as “Acme Consulting” may in fact be incorporated under another name, such as “John Smith Consulting Solutions (Canada) Inc.” or as a numbered company (e.g., 543421 BC Ltd.). If you do not provide the true legal name of the party with whom you are entering into a contract, you may not be able to enforce your contract against that party. To get it right, you need to do a little due diligence. For example, you can do a business search to make sure the right part is named in your contract. Courts use a variety of terms to identify the role of a particular party in a civil dispute, typically the party filing a claim as a plaintiff or, in older U.S. cases, the party to the first party; and the party against whom the action was brought as a defendant or, in earlier U.S. cases, the party to the second party. In criminal proceedings in Nigeria and some other countries, the parties are called prosecutor and defendant.
For individuals, write their name in the preamble (the first paragraph of the contract), then in the signature block, ask the person to sign and print their individual name. It`s best to use their official name (i.e. Christopher and not Chris), although it`s not essential in most situations. When shortening, do your best not to confuse the reader. Just as meandering sentences and lack of proper grammar trip up readers, ambiguous abbreviations and acronyms stumble. Bryan Garner and the late Antonin Scalia argue in their book “Making Your Case” to avoid acronyms altogether and say they can create a “short alphabet soup.” After all, they remind us, acronyms are “primarily for the convenience of the writer or speaker,” not for the reader. The purpose of this section is to define precisely who the contracting parties are, i.e. who assumes the contractual obligations.
While naming the right parties to a contract may seem like a fairly straightforward process, the potential for error is still there. There are two important things to keep in mind at this point: First impressions matter. The way we present ourselves to others stays with the people. We can also carry different introductions in different situations to meet our needs. In court, I can be a Taylor lawyer or a consultant. But I can`t imagine meeting friends of friends in a wine bar (at least not if I want them to like me). The same applies to the introduction of parts or other peripheral characters in the legal drafting. Lawyers must make thoughtful and prudent decisions about how they relate to key players when making a submission or application. A wrong choice (or no choice at all) could lead to loss of effect, confusion, or at least a missed opportunity. The contracting party is the person or undertaking responsible for all obligations arising from the contract. Therefore, if an obligation is not fulfilled, the designated party is the one who is held liable. If it is an individual, that person is personally responsible.
If it is a business, the business is responsible, but the owners/employees of that business are usually not (with a few exceptions). Of course, the facts of your particular case determine the naming conventions, but never let this be an afterthought. Let your names evoke thoughtful characterizations. The naming of parties seems simple, but it is actually a very common trap; And the impact can be significant. I always like to shock my law students with this concept. But perhaps the more experienced practitioners among you won`t cringe like some 1Ls when I advocate using naming conventions to humanize or dehumanize based on your client`s needs. Let me be clear. Using uniform naming conventions for both parties in one case is a missed opportunity to harm the other party in your reader`s mind. If you call your client “the plaintiff” and the other party “the defendant,” you have inadvertently levelled the two parties and missed an opportunity to legitimately tip the balance in one direction. Under Virginia law, this is a bigger issue than you think. In particular, this is a question that may arise if one or more of the parties are a company or a limited liability company. It is necessary to indicate the name correctly – i.e.
to use the name of the officially registered company – and failure to do so may affect legal rights. In der Rechtssache Berglund Chevrolet, Inc. against Thor Incorporated, for example, the plaintiff, owner of an auto showroom, claimed damages for alleged breaches of a construction contract. It was owned by Berglund Chevrolet, Inc.; However, the name on the contract was Berglund Automotive Group, which was not the official name of the owner (or even the registered trade name).* The legal name on the contracts is the official registered name of the person or company involved in the agreement. When both parties sign a contract, it becomes legally binding. For this reason, it is important to ensure that you use the correct legal names of each party when creating a commercial contract. Keep in mind that if you are the party signing the contract and the official company name is not used and the title is not identified, you could be held personally liable. To achieve these goals, search for the business on the Secretary of State`s website for the state where it is likely to be incorporated (usually its home state or Delaware). In this database you will find their legal name, the type of entity and the state in which they were registered. But what if we represent the big bad corporate defendant? Part of our job as zealous lawyers is to subtly dehumanize the plaintiff. We can therefore succeed by referring to Janine Smith as a “plaintiff” throughout our application.
Maybe we should introduce you to the place where Janine fell at her family`s local Walmart. Perhaps we could take the community aspect in our naming convention and call it a “local store,” while referring by name to the corporate part. For the first part of our series of articles on the essential characteristics of a contract, we will start at the beginning: by naming the right parties. Each contract will have a section listing the parties and their addresses. Generally, it looks like this: n. Reference in a written contract to identify one of the persons entering into the contract. The agreement would read as follows: `Mary McConnell (hereinafter referred to as part of Part One)`. It is preferable to identify the parties by an abbreviated form of their name (“McConnell”) or as buyers, sellers, owners, trustees or other useful identifications. The use of the name helps to follow and understand the contract and avoids confusion with “the part of the second party” that identifies another party to the agreement. This seems to be the simplest and most harmless thing. Who could confuse the names of the parties in a contract? And what`s wrong if the name isn`t quite right? Naming a business unit is a bit more difficult.